Conditions to Closing Date. The obligation of each Lender to make the Initial Term Loans is subject to satisfaction of the following conditions precedent (or waiver thereof in accordance with Section 10.01): (a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel: (i) executed counterparts of this Agreement; (ii) a Term Note executed by the Borrower in favor of each Lender that has requested a Term Note at least five (5) Business Days in advance of the Closing Date; (iii) executed counterparts of the Guaranty from each of the Loan Parties listed on the signature pages thereto; (iv) each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party thereto, together with (except as provided in such Collateral Documents): (A) certificates, if any, representing the pledged equity referred to therein accompanied by undated stock powers executed in blank and (if applicable) instruments evidencing the pledged debt referred to therein endorsed in blank; and (B) evidence that all other actions, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent and Collateral Agent; provided that if, notwithstanding the Borrower’s use of commercially reasonable efforts without undue burden or expense to cause this clause (iv) to be satisfied on the Closing Date, the requirements hereof (other than (a) the execution of each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule by each Loan Party thereto, (b) the pledge and perfection of security interests in the certificated Equity Interests (to the extent possession of such certificates perfects a security interest therein) of each direct Subsidiary of the Borrower that is a Material Subsidiary that constitutes a Domestic Subsidiary (provided that such Equity Interests are not Excluded Equity) and (c) delivery of Uniform Commercial Code financing statements (other than fixture filings on real estate) with respect to perfection of security interests in the assets of the Loan Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code) are not satisfied as of the Closing Date, the satisfaction of such requirements shall not be a condition to the making of the Initial Term Loans to the Borrower on the Closing Date (but shall be required to be satisfied as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.12) (which shall be no earlier than 60 days after the Closing Date); (v) a certificate of each Loan Party, certified by a secretary or other Responsible Officer (1) copies of Organization Documents of the Loan Parties (including any by-laws or other applicable operating agreement of the Loan Parties), (2) resolutions or other action, (3) good standing certificates, and (4) incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Closing Date; (vi) an opinion of ▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties; (vii) a certificate signed by a Responsible Officer of the Borrower certifying that (A) since March 12, 2021, there shall not have occurred and be continuing, any -89- change, event, occurrence, state of facts or development that has had, or would reasonably be expected to have, a Company Material Adverse Effect and (B) the condition set forth in clause (c)(ii) below is satisfied; (viii) a certificate substantially in the form of Exhibit K attesting to the Solvency of the Borrower and its Subsidiaries (on a consolidated basis) on the Closing Date after giving effect to the Transaction, from the Borrower’s chief financial officer or other officer with equivalent duties; and (ix) a Committed Loan Notice relating to the Credit Extension to be made on the Closing Date. (b) All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid hereunder or pursuant to the Fee Letter, to the extent invoiced at least three (3) Business Days prior to the Closing Date (except as otherwise agreed to by the Borrower), in each case, shall have been paid in full in cash or will be paid on the Closing Date. (c) Prior to or substantially simultaneously with the Closing Date, (i) the Equity Contribution in at least the amount set forth in the definition thereof shall have been consummated and (ii) the Acquisition shall be consummated in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects of any such requests) by the Borrower that are materially adverse to the interests of the Lenders or the Administrative Agent, without the prior consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that any modification, amendment, supplement, consent, waiver or request that results in (a) any decrease in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as such decrease reduced, on a dollar-for-dollar basis, the aggregate amount of the Initial Term Loans, (b) any increase in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as funded with proceeds of common equity or preferred equity that does not constitute Disqualified Equity Interests and (c) any adverse amendment to the definition of “Company Material Adverse Effect” is materially adverse to the interests of the Lenders and Administrative Agent ). (d) The Administrative Agent shall have received (i) the Audited Financial Statements and (ii) the Unaudited Financial Statements. (e) Prior to or substantially simultaneously with the Closing Date, the Refinancing shall have been consummated. (f) The Specified Acquisition Agreement Representations shall be true and correct in all material respects on and as of the Closing Date, and the Specified Representations shall be true and correct in all material respects on and as of the Closing Date; provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates. (g) The Administrative Agent shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors as has been reasonably requested in writing at least five (5) Business Days prior to the Closing Date by the Administrative Agent that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act. For purposes of determining whether the Closing Date has occurred, each Lender that has executed this Agreement shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or such Lender, as the case may be, unless such ▇▇▇▇▇▇ has notified the Administrative Agent of any disagreement prior to the Closing Date.
Appears in 1 contract
Conditions to Closing Date. The obligation of each Lender to make its initial Credit Extension hereunder on the Initial Term Loans Closing Date is subject to satisfaction of the following conditions precedent (or waiver thereof in accordance with Section 10.01):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (other than in respect of (a)(i)(v) below), each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
: (i) executed counterparts of this Agreement;
Agreement and the Guaranty from each of the Loan Parties listed on the signature pages thereto; (ii) a Term Note executed by the Borrower in favor of each Lender that has requested a Term Note at least five (5) Business Days in advance of the Closing Date;
; (iii) executed counterparts of the Guaranty from each of the Loan Parties listed on the signature pages thereto;
(iv) each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party party thereto, together with (except as provided in such Collateral Documents):
); (A) certificates, if any, representing the pledged equity referred to therein therein, accompanied by undated stock powers executed in blank and (if applicable) instruments evidencing the pledged debt referred to therein endorsed in blank; and
(B) evidence that all other actions, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent and Collateral Agent; provided and (C) certified copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that if, notwithstanding name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that are required by the Borrower’s use of commercially reasonable efforts without undue burden Security Agreement or expense to cause this clause that the Administrative Agent deems necessary or appropriate; (iv) to be satisfied on the Closing Datesuch certificates, the requirements hereof (other than (a) the execution of each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule by each Loan Party thereto, (b) the pledge and perfection of security interests in the certificated Equity Interests (to the extent possession of such certificates perfects a security interest therein) of each direct Subsidiary of the Borrower that is a Material Subsidiary that constitutes a Domestic Subsidiary (provided that such Equity Interests are not Excluded Equity) and (c) delivery of Uniform Commercial Code financing statements (other than fixture filings on real estate) with respect to perfection of security interests in the assets of the Loan Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code) are not satisfied as of the Closing Date, the satisfaction of such requirements shall not be a condition to the making of the Initial Term Loans to the Borrower on the Closing Date (but shall be required to be satisfied as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.12) (which shall be no earlier than 60 days after the Closing Date);
(v) a certificate of each Loan Party, certified by a secretary or other Responsible Officer (1) copies of Organization Documents of the Loan Parties (including any by-laws or other applicable operating agreement of the Loan Parties), (2) resolutions or other action, (3) good standing certificates, action and (4) incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Closing Date;
(vi) an opinion of ▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying that (A) since March 12, 2021, there shall not have occurred and be continuing, any -89- change, event, occurrence, state of facts or development that has had, or would reasonably be expected to have, a Company Material Adverse Effect and (B) the condition set forth in clause (c)(ii) below is satisfied;
(viii) a certificate substantially in the form of Exhibit K attesting to the Solvency of the Borrower and its Subsidiaries (on a consolidated basis) on the Closing Date after giving effect to the Transaction, from the Borrower’s chief financial officer or other officer with equivalent duties; and
(ix) a Committed Loan Notice relating to the Credit Extension to be made on the Closing Date.-95- #95982248v17
(b) All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid hereunder or pursuant to the Agent Fee Letter and Engagement Letter, to the extent invoiced at least three (3) Business Days prior to the Closing Date (except as otherwise agreed to by the Borrower), in each case, shall have been paid in full in cash or will be paid on the Closing Date.
(c) Prior to or substantially simultaneously with the Closing Date, (i) the Equity Contribution in at least the amount set forth in the definition thereof shall have been consummated and (ii) the Acquisition shall be consummated in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects of any such requests) by the Borrower that are materially adverse to the interests of the Lenders or the Administrative Agent, without the prior consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that any modification, amendment, supplement, consent, waiver or request that results in (a) any decrease in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as such decrease reduced, on a dollar-for-dollar basis, the aggregate amount of the Initial Term Loans, (b) any increase in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as funded with proceeds of common equity or preferred equity that does not constitute Disqualified Equity Interests and (c) any adverse amendment to the definition of “Company Material Adverse Effect” is materially adverse to the interests of the Lenders and Administrative Agent ).
(d) The Administrative Agent Lead Arrangers shall have received (i) the Audited Financial Statements and (ii) the Unaudited Financial Statements.
(ed) Prior to or substantially simultaneously with the Closing Date, the Refinancing shall have been consummated.
(f) The Specified Acquisition Agreement Representations shall be true and correct in all material respects on and as of the Closing Date, and the Specified Representations shall be true and correct in all material respects on and as of the Closing Date; provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(g) The Administrative Agent shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors as has been reasonably requested in writing at least five (5) Business Days prior to the Closing Date by the Administrative Agent that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act. For purposes of determining whether the Closing Date has occurred, each Lender that has executed this Agreement shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or such Lender, as the case may be, unless such ▇▇▇▇▇▇ has notified the Administrative Agent of any disagreement prior to the Closing Date.
Appears in 1 contract
Sources: Credit Agreement (Utz Brands, Inc.)
Conditions to Closing Date. The obligation of each Lender to make the Initial Term Loans its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent (or waiver thereof in accordance with Section 10.01):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (which may be delivered via email) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (other than in respect of (a)(i)(v) below), each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this AgreementAgreement and the Guaranty from each of the Loan Parties listed on the signature pages thereto;
(ii) a Term Note executed by the Borrower Borrowers in favor of each Lender that has requested a Term Note at least five (5) Business Days in advance of the Closing Date;
(iii) executed counterparts of the Guaranty from each of the Loan Parties listed on the signature pages thereto;
(iv) each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party party thereto, together with (except as provided in such Collateral Documents):);
(A) certificates, if any, representing the pledged equity referred to therein therein, accompanied by undated stock powers powers, if applicable, executed in blank and (if applicable) instruments evidencing the pledged debt referred to therein endorsed in blank; and
(B) evidence that all other actions, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent and Collateral Agent; provided that if, notwithstanding the Borrower’s use of commercially reasonable efforts without undue burden or expense to cause this clause ;
(iv) to be satisfied on the Closing Datesuch certificates, the requirements hereof (other than (a) the execution of each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule by each Loan Party thereto, (b) the pledge and perfection of security interests in the certificated Equity Interests (to the extent possession of such certificates perfects a security interest therein) of each direct Subsidiary of the Borrower that is a Material Subsidiary that constitutes a Domestic Subsidiary (provided that such Equity Interests are not Excluded Equity) and (c) delivery of Uniform Commercial Code financing statements (other than fixture filings on real estate) with respect to perfection of security interests in the assets of the Loan Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code) are not satisfied as of the Closing Date, the satisfaction of such requirements shall not be a condition to the making of the Initial Term Loans to the Borrower on the Closing Date (but shall be required to be satisfied as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.12) (which shall be no earlier than 60 days after the Closing Date);
(v) a certificate of each Loan Party, certified by a secretary or other Responsible Officer (1) copies of Organization Documents of the Loan Parties (including any by-laws or other applicable operating agreement of the Loan Parties), (2) resolutions or other action, (3) good standing certificates, action and (4) incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Closing Date;
(viv) an opinion of legal opinions, in customary form, from (i) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, as New York and Delaware counsel to the Loan Parties, (ii) Greenbaum, Rowe, ▇▇▇▇▇ & ▇▇▇▇▇ LLP, as special New Jersey counsel to the Loan Parties, and (iii) Hunton ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, as special Virginia and North Carolina counsel to the Loan Parties;
(viivi) a certificate signed by a Responsible Officer of the Borrower Parent certifying that (A) since March 12, 2021, there shall not have occurred and be continuing, any -89- change, event, occurrence, state of facts or development that has had, or would reasonably be expected to have, a Company Material Adverse Effect and (B) the condition conditions set forth in clause (c)(iif) below is satisfied;
(viiivii) a certificate substantially in the form of Exhibit K attesting to the Solvency of the Borrower Parent and its Subsidiaries (on a consolidated basis) on the Closing Date after giving effect to the TransactionTransactions, from the BorrowerParent’s chief financial officer or other officer with equivalent duties; and
(ix) a Committed Loan Notice relating to the Credit Extension to be made on the Closing Date.
(b) All The Parent shall have paid all fees required to be paid on the Closing Date pursuant and other amounts due and payable to the Fee Letter Lead Arrangers and the Administrative Agent in connection with this Agreement, including reimbursement or payment of reasonable out-of-pocket and documented costs and expenses required to be paid hereunder actually incurred by the Lead Arranger or pursuant to Administrative Agent in connection with this Agreement, including the Fee Letterreasonable fees, expenses and disbursements of counsel for the Lead Arrangers and the Administrative Agent, in each case, to the extent invoiced at least three (3) Business Days prior to the Closing Date (except as otherwise agreed to by the Borrower), in each case, shall have been paid in full in cash or will be paid on the Closing Date.
(c) The Lead Arrangers shall have received Audited Parent Financial Statements.
(d) Prior to or substantially simultaneously with the Closing Date, (i) the Equity Contribution in at least the amount set forth in the definition thereof shall have been consummated and (ii) the Acquisition shall be consummated in all material respects in accordance with the terms occurrence of the Acquisition Agreement, after giving effect to any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects of any such requests) by the Borrower that are materially adverse to the interests of the Lenders or the Administrative Agent, without the prior consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that any modification, amendment, supplement, consent, waiver or request that results in (a) any decrease in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as such decrease reduced, closing on a dollar-for-dollar basis, the aggregate amount of the Initial Term Loans, (b) any increase in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as funded with proceeds of common equity or preferred equity that does not constitute Disqualified Equity Interests and (c) any adverse amendment to the definition of “Company Material Adverse Effect” is materially adverse to the interests of the Lenders and Administrative Agent ).
(d) The Administrative Agent shall have received (i) the Audited Financial Statements and (ii) the Unaudited Financial Statements.
(e) Prior to or substantially simultaneously with the Closing Date, the Refinancing shall have been consummatedoccurred.
(f) The Specified Acquisition Agreement Representations shall be true and correct in all material respects on and as of the Closing Date, and the Specified Representations shall be true and correct in all material respects on and as of the Closing Date; provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(ge) The Administrative Agent and the Lead Arrangers shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Borrower Borrowers and the Guarantors as has been reasonably requested in writing at least five ten (510) Business Days prior to the Closing Date by the Administrative Agent and the Lead Arrangers that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT ActAct and, to the extent required by 31 C.F.R. § 1010.230, a certification of the Borrowers regarding beneficial ownership.
(f) Since December 31, 2020, no events have occurred or circumstances have arisen that, individually or in the aggregate, have had or reasonably would be expected to have, a Material Adverse Effect. For purposes of determining whether the Closing Date has occurred, each Lender that has executed this Agreement shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or such Lender, as the case may be, unless such ▇▇▇▇▇▇ Lender has notified the Administrative Agent of any disagreement prior to the Closing Date.
Appears in 1 contract
Conditions to Closing Date. The obligation of each Lender to make This Agreement shall not become effective until the Initial Term Loans is subject to satisfaction date on which all of the following conditions precedent have been satisfied (or waiver thereof waived in accordance with Section 10.01):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counselAgent:
(i) executed counterparts of this Agreement;
(ii) a Term Note Notes executed by the Borrower in favor of each Lender that has requested a Term Note at least five requesting Notes, each of which shall be originals or telecopies (5) Business Days in advance of the Closing Datefollowed promptly by originals);
(iii) executed counterparts such customary certificates of the Guaranty from each of the Loan Parties listed on the signature pages thereto;
(iv) each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party thereto, together with (except as provided in such Collateral Documents):
(A) certificates, if any, representing the pledged equity referred to therein accompanied by undated stock powers executed in blank and (if applicable) instruments evidencing the pledged debt referred to therein endorsed in blank; and
(B) evidence that all other actions, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent and Collateral Agent; provided that if, notwithstanding the Borrower’s use of commercially reasonable efforts without undue burden or expense to cause this clause (iv) to be satisfied on the Closing Date, the requirements hereof (other than (a) the execution of each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule by each Loan Party thereto, (b) the pledge and perfection of security interests in the certificated Equity Interests (to the extent possession of such certificates perfects a security interest therein) of each direct Subsidiary of the Borrower that is a Material Subsidiary that constitutes a Domestic Subsidiary (provided that such Equity Interests are not Excluded Equity) and (c) delivery of Uniform Commercial Code financing statements (other than fixture filings on real estate) with respect to perfection of security interests in the assets of the Loan Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code) are not satisfied as of the Closing Date, the satisfaction of such requirements shall not be a condition to the making of the Initial Term Loans to the Borrower on the Closing Date (but shall be required to be satisfied as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.12) (which shall be no earlier than 60 days after the Closing Date);
(v) a certificate of each Loan Party, certified by a secretary or other Responsible Officer (1) copies of Organization Documents of the Loan Parties (including any by-laws or other applicable operating agreement of the Loan Parties), (2) resolutions or other action, (3) good standing certificates, and (4) incumbency certificates and/or other certificates of Responsible Officers of each Loan Party the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party the Borrower is a party party;
(iv) such customary documents and certifications of public officials as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing and in good standing in its jurisdiction of organization;
(v) a customary opinion of Proskauer Rose LLP, counsel to be a party on the Closing DateBorrower, reasonably satisfactory to the Administrative Agent and addressed to the Administrative Agent and each Lender;
(vi) an opinion of ▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties[Reserved];
(vii) a customary certificate signed by a Responsible Officer of the Borrower certifying that (A) that the conditions specified in Sections 4.02(b) and (c) have been satisfied, and (B) that there has been no event or circumstance since March 12, 2021, there shall not have occurred and be continuing, any -89- change, event, occurrence, state the date of facts or development the Audited Financial Statements that has had, had or would could be reasonably be expected to have, either individually or in the aggregate, a Company Material Adverse Effect and (B) the condition set forth in clause (c)(ii) below is satisfied;Effect; and
(viii) a certificate substantially in the form of Exhibit K attesting to the Solvency of the Borrower and its Subsidiaries (on a consolidated basis) on the Closing Date after giving effect to the Transaction, from the Borrower’s chief financial officer or other officer with equivalent duties; and
(ix) a Committed Loan Notice relating to the Credit Extension to be made on the Closing Date.
(b) All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid hereunder or pursuant to the Fee Letter, to the extent invoiced at least three (3) Business Days prior to the Closing Date (except as otherwise agreed to by the Borrower), in each case, shall have been paid in full in cash or will be paid on the Closing Date.
(c) Prior to or substantially simultaneously with the Closing Date, (i) the Equity Contribution in at least the amount set forth in the definition thereof shall have been consummated and (ii) the Acquisition shall be consummated in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects of any such requests) by the Borrower that are materially adverse to the interests of the Lenders or the Administrative Agent, without the prior consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that any modification, amendment, supplement, consent, waiver or request that results in (a) any decrease in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as such decrease reduced, on a dollar-for-dollar basis, the aggregate amount of the Initial Term Loans, (b) any increase in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as funded with proceeds of common equity or preferred equity that does not constitute Disqualified Equity Interests and (c) any adverse amendment to the definition of “Company Material Adverse Effect” is materially adverse to the interests of the Lenders and Administrative Agent ).
(d) The Administrative Agent shall have received (i) the Audited Financial Statements and (ii) the Unaudited Financial Statements.
(e) Prior to or substantially simultaneously with the Closing Date, the Refinancing shall have been consummated.
(f) The Specified Acquisition Agreement Representations shall be true and correct in all material respects on and as of the Closing Date, and the Specified Representations shall be true and correct in all material respects on and as of the Closing Date; provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(g) The Administrative Agent shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors as has been reasonably requested in writing at least five (5) Business Days prior to the Closing Date by the Administrative Agent that they reasonably determine is required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Patriot Act, to the extent requested of the Borrower in writing not fewer than five (5) Business Days prior to the Closing Date.
(b) Any fees required to be paid hereunder and pursuant to the Fee Letter on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees and out-of-pocket charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable hereunder and invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Closing Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). For Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining whether compliance with the Closing Date has occurredconditions specified in this Section 4.01, each Lender that has executed signed this Agreement shall be deemed to have consented to, approved or accepted, accepted or to be satisfied with, each document or other matter required hereunder thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent or shall have received notice from such Lender, as the case may be, unless such ▇▇▇▇▇▇ has notified the Administrative Agent of any disagreement Lender prior to the proposed Closing DateDate specifying its objection thereto.
Appears in 1 contract
Conditions to Closing Date. The obligation of each Lender to make Each Lender’s respective Commitments hereunder shall become effective, on the Initial Term Loans is terms and subject to the other conditions set forth herein, upon the satisfaction of the following conditions precedent (or waiver thereof (in accordance with Section 10.01):) of the following conditions precedent:
(a) The Administrative Agent’s receipt Agent shall have received all of the following, each of which shall be originals or facsimiles or “.pdf” files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, if applicable, each dated as of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Date), each in form and substance reasonably satisfactory to the Administrative Agent Agent, and each accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to the Borrower and its legal counsel:Subsidiaries, giving effect to the Transactions):
(i) executed counterparts of (A) this Agreement;
Agreement from the Borrower, (iiB) a Term Note executed by the Borrower in favor of each Lender that has requested a Term Note at least five (5) Business Days in advance of the Closing Date;
(iii) executed counterparts of the Guaranty from each of Guarantor and (C) the Loan Parties listed on Security Agreement from the signature pages thereto;
(iv) Borrower and each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party thereto, Guarantor; together with (except as provided in such Collateral Documentssubject to the last paragraph of this Section 4.01):
(A) certificatescopies of proper financing statements, if anyfiled or duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens on assets of the Borrower and the Guarantors created under the Security Agreement and the Pledge Agreement, representing covering the pledged equity referred to therein accompanied by undated stock powers executed Collateral described in blank and (if the Security Agreement or the Pledge Agreement, as applicable) instruments evidencing the pledged debt referred to therein endorsed in blank; and,
(B) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent or Collateral Agent may deem reasonably necessary or desirable in order to satisfy perfect and protect the Collateral and Guarantee Requirement Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (including receipt of duly executed payoff letters, customary lien searches and Collateral Agent; provided that ifUCC-3 termination statements), notwithstanding the Borrower’s use of commercially reasonable efforts without undue burden or expense to cause this clause and
(iv) to be satisfied on the Closing Date, the requirements hereof (other than (aC) the execution of each Collateral Document set forth on Schedule 1.01A required to be Pledge Agreement, duly executed on by the Closing Date as indicated on such schedule by each Loan Party theretoBorrower and the Guarantors, together with (b) the pledge and perfection of security interests in the certificated Equity Interests (subject to the extent possession last paragraph of this Section 4.01) certificates, if any, representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank,
(ii) such customary certificates perfects a security interest therein) of each direct Subsidiary of resolutions or other action authorizing the Borrower that is a Material Subsidiary that constitutes a Domestic Subsidiary (provided that such Equity Interests are not Excluded Equity) execution, delivery and (c) delivery of Uniform Commercial Code financing statements (other than fixture filings on real estate) with respect to perfection of security interests in the assets performance of the Loan Parties that may be perfected by Documents to which such Person is a party and, in the filing of a financing statement under the Uniform Commercial Code) are not satisfied as case of the Closing DateBorrower, the satisfaction of such requirements shall not be a condition to the making of the Initial Term Loans to the Borrower on the Closing Date (but shall be required to be satisfied as promptly as practicable after the Closing Date borrowings and in any event within the period specified therefor in Schedule 6.12) (which shall be no earlier than 60 days after the Closing Date);
(v) a certificate of each Loan Partyother transactions hereunder, certified by a secretary or other Responsible Officer (1) copies of Organization Documents of the Loan Parties (including any by-laws or other applicable operating agreement of the Loan Parties), (2) resolutions or other action, (3) good standing certificates, and (4) incumbency certificates and/or other certificates of Responsible Officers of the Borrower and each Loan Party Guarantor as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party each of the Borrower and the Guarantors is a party or is to be a party on party;
(iii) such documents and certifications (including Organization Documents and, if applicable, good standing certificates) as the Closing DateAdministrative Agent may reasonably require to evidence that the Borrower and each Guarantor is duly organized or formed, and that each of them is validly existing and in good standing, except, other than with respect to the Borrower, to the extent that failure to be in good standing could not reasonably be expected to have a Material Adverse Effect;
(iv) a Committed Loan Notice and a Letter of Credit Application, if applicable, in each case relating to the initial Credit Extension;
(v) a solvency certificate from a financial officer of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit I;
(vi) an opinion of Debevoise & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(vii) a certificate signed by a Responsible Officer opinions of local counsel for the Loan Parties listed on Schedule 4.01(a) hereto, in form and substance reasonably satisfactory to the Administrative Agent; and
(viii) opinions of FCC counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent.
(b) Since (x) December 31, 2012 through the date of the Borrower certifying Purchase Agreement, there has not occurred any event, development, change or effect that has had or could reasonably be expected to have, individually or in the aggregate, a Target Material Adverse Effect and (Ay) since March 12, 2021the date of the Purchase Agreement, there shall not have occurred and be continuing, any -89- change, event, occurrence, state of facts or development that has had, or would reasonably be expected to have, a Company Target Material Adverse Effect and (B) the condition set forth in clause (c)(ii) below is satisfied;
(viii) a certificate substantially in the form of Exhibit K attesting to the Solvency of the Borrower and its Subsidiaries (on a consolidated basis) on the Closing Date after giving effect to the Transaction, from the Borrower’s chief financial officer or other officer with equivalent duties; and
(ix) a Committed Loan Notice relating to the Credit Extension to be made on the Closing Date.
(b) All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid hereunder or pursuant to the Fee Letter, to the extent invoiced at least three (3) Business Days prior to the Closing Date (except as otherwise agreed to by the Borrower), in each case, shall have been paid in full in cash or will be paid on the Closing DateEffect.
(c) Prior to or substantially simultaneously with the Closing Date, (i) the Equity Contribution in at least the amount set forth in the definition thereof The Borrower and each Guarantor shall have been consummated and (ii) provided the Acquisition shall be consummated in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects of any such requests) by the Borrower that are materially adverse to the interests of the Lenders or the Administrative Agent, without the prior consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that any modification, amendment, supplement, consent, waiver or request that results in (a) any decrease in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as such decrease reduced, on a dollar-for-dollar basis, the aggregate amount of the Initial Term Loans, (b) any increase in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as funded with proceeds of common equity or preferred equity that does not constitute Disqualified Equity Interests and (c) any adverse amendment to the definition of “Company Material Adverse Effect” is materially adverse to the interests of the Lenders and Administrative Agent ).
(d) The Administrative Agent shall have received (i) the Audited Financial Statements and (ii) the Unaudited Financial Statements.
(e) Prior to or substantially simultaneously with the Closing Date, the Refinancing shall have been consummated.
(f) The Specified Acquisition Agreement Representations shall be true and correct in all material respects on and as of the Closing Date, and the Specified Representations shall be true and correct in all material respects on and as of the Closing Date; provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(g) The Administrative Agent shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors as has been reasonably requested in writing at least five ten (510) Business Days days prior to the Closing Date by the Administrative Agent Lenders that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money money-laundering rules and regulations, including without limitation the USA PATRIOT Act. For purposes of determining whether the Closing Date has occurred, in each Lender that has executed this Agreement shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or such Lender, as the case may be, unless such ▇▇▇▇▇▇ has notified the Administrative Agent of any disagreement at least three Business Days prior to the Closing DateDate (or such shorter period as the Administrative Agent shall otherwise agree).
(d) All actions necessary to establish that the Collateral Agent will have a perfected security interest (subject to no Liens other than the Liens permitted under Section 7.01) in the Collateral shall have been taken, in each case, to the extent such Collateral (including the creation or perfection of any security interest) is required to be provided on the Closing Date pursuant to the last paragraph of this Section 4.01.
(e) The Acquisition shall have been consummated, or substantially simultaneously with the initial borrowing under the Facilities, shall be consummated, in all material respects in accordance with the terms of the Purchase Agreement, without giving effect to any modifications or amendments, or any consents or waivers thereunder by the Borrower that are materially adverse to the Lenders or the Arrangers without the prior consent of the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) (it is understood and agreed that any change in the purchase price in connection with the Acquisition shall not be deemed to be materially adverse to the interests of the Lenders and the Arrangers; provided that (A) any reduction of the purchase price to the extent resulting in a lower cash funding by the Borrower shall be allocated to a reduction of the Term Facility, and (B) any increase in purchase price may be funded with the Borrower’s cash or the Net Cash Proceeds of any Permitted Equity Issuance.
Appears in 1 contract
Sources: Credit Agreement (Tribune Media Co)
Conditions to Closing Date. The effectiveness of this Agreement and the obligation of each Initial Term Lender to make the its Initial Term Loans Loan on the Closing Date is subject to satisfaction of the following conditions precedent (or waiver thereof in accordance with Section 10.01):precedent, except as otherwise agreed between the Company and the Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or pdf copies or other facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of HGVI or the signing Loan Party, as applicable, each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreementa Committed Loan Notice in accordance with the requirements hereof;
(ii) a Term Note executed by counterparts of this Agreement and the Borrower in favor of each Lender that has requested a Term Note at least five (5) Business Days in advance of the Closing DateFirst Lien Intercreditor Agreement;
(iii) executed counterparts of the Guaranty from each of the Loan Parties listed on the signature pages thereto;
(iv) each Collateral Document set forth on Schedule 1.01A 1.01C required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party thereto, together with (except as provided in such Collateral Documents):
(A) certificates, if any, representing the pledged equity referred all documents and instruments required to therein accompanied by undated stock powers executed in blank create and (if applicable) instruments evidencing the pledged debt referred to therein endorsed in blank; and
(B) evidence that all other actions, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy perfect the Collateral and Guarantee Requirement Agent’s security interests in the Collateral shall have been takenexecuted and delivered and, completed or otherwise provided if applicable, be in proper form for in a manner reasonably satisfactory filing (it being understood that, to the Administrative Agent and extent any security interest in any such Collateral Agent; is not or cannot be provided that if, notwithstanding the Borrower’s use of commercially reasonable efforts without undue burden or expense to cause this clause (iv) to be satisfied and/or perfected on the Closing Date, the requirements hereof Date (other than (a) the execution of each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule by each Loan Party thereto, (b1) the pledge and perfection of the security interests interest in the certificated Equity Interests equity interests of each of the Company’s wholly owned material U.S. Restricted Subsidiaries (to the extent possession of such certificates perfects a security interest thereinrequired by the Collateral and Guarantee Requirement and Section 6.11) of each direct Subsidiary (provided that, to the extent the Company has used commercially reasonable efforts to procure the delivery thereof prior to the Closing Date, certificated equity interests of the Borrower that is a Material Subsidiary that constitutes a Domestic Subsidiary (provided that wholly owned material U.S. Restricted Subsidiaries of the Target, to the extent required by the Collateral and Guarantee Requirement and Section 6.11, will only be required to be delivered and/or perfected on the Closing Date pursuant to the terms set forth above if such Equity Interests certificated equity interests are not Excluded Equityreceived by the Company from the Target) and (c2) delivery of Uniform Commercial Code financing statements (other than fixture filings on real estate) with respect assets pursuant to perfection of security interests in the assets of the Loan Parties that which a lien may be perfected by the filing of a financing statement under the Uniform Commercial Code) are not satisfied as after the Company’s use of commercially reasonable efforts to do so or without undue burden or expense, then the Closing Date, the satisfaction provision and/or perfection of a security interest in such requirements Collateral shall not be constitute a condition to the making precedent for purposes of the Initial Term Loans to the Borrower on the Closing Date (this Section 4.01, but instead shall be required to be satisfied delivered within ninety (90) days (or such longer period as promptly as practicable after the Closing Date and Administrative Agent may agree in any event within the period specified therefor writing in Schedule 6.12its discretion) (which shall be no earlier than 60 days after the Closing Date)) in accordance with, and as required by, Section 6.11;
(viv) a certificate such certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of HGVI and each Loan Party, certificates or memorandums and articles of incorporation, certificates of limited LEGAL02/43062751v1 partnership or certificates of formation, including all amendments thereto, of HGVI and each Loan Party, certified (as of a recent date), if applicable, by a secretary the Secretary of State (or other Responsible Officer (1similar official) copies of Organization Documents of the Loan Parties (including any by-laws jurisdiction of its organization or other applicable operating agreement incorporation, as the case may be, certificates of the Loan Parties), (2) resolutions or other action, (3) good standing certificates, and (4) incumbency certificates and/or other certificates of Responsible Officers of HGVI and each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which HGVI or such Loan Party is a party or is to be a party on the Closing Date;
(vi) an opinion of ▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying that (A) since March 12, 2021, there shall not have occurred and be continuing, any -89- change, event, occurrence, state of facts or development that has had, or would reasonably be expected to have, a Company Material Adverse Effect and (B) the condition set forth in clause (c)(ii) below is satisfied;
(viii) a certificate substantially in the form of Exhibit K attesting to the Solvency of the Borrower and its Subsidiaries (on a consolidated basis) on the Closing Date after giving effect to the Transaction, from the Borrower’s chief financial officer or other officer with equivalent duties; and
(ix) a Committed Loan Notice relating to the Credit Extension to be made on the Closing Date.
(b) All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid hereunder or pursuant to the Fee Letter, to the extent invoiced at least three (3) Business Days prior to the Closing Date (except as otherwise agreed to by the Borrower), in each case, shall have been paid in full in cash or will be paid on the Closing Date.
(c) Prior to or substantially simultaneously with the Closing Date, (i) the Equity Contribution in at least the amount set forth in the definition thereof shall have been consummated and (ii) the Acquisition shall be consummated in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects of any such requests) by the Borrower that are materially adverse to the interests of the Lenders or the Administrative Agent, without the prior consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that any modification, amendment, supplement, consent, waiver or request that results in (a) any decrease in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as such decrease reduced, on a dollar-for-dollar basis, the aggregate amount of the Initial Term Loans, (b) any increase in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as funded with proceeds of common equity or preferred equity that does not constitute Disqualified Equity Interests and (c) any adverse amendment to the definition of “Company Material Adverse Effect” is materially adverse to the interests of the Lenders and Administrative Agent ).
(d) The Administrative Agent shall have received (i) the Audited Financial Statements and (ii) the Unaudited Financial Statements.
(e) Prior to or substantially simultaneously with the Closing Date, the Refinancing shall have been consummated.
(f) The Specified Acquisition Agreement Representations shall be true and correct in all material respects on and as of the Closing Date, and the Specified Representations shall be true and correct in all material respects on and as of the Closing Date; provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(g) The Administrative Agent shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors as has been reasonably requested in writing at least five (5) Business Days prior to the Closing Date by the Administrative Agent that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act. For purposes of determining whether the Closing Date has occurred, each Lender that has executed this Agreement shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or such Lender, as the case may be, unless such ▇▇▇▇▇▇ has notified the Administrative Agent of any disagreement prior to the Closing Date.
Appears in 1 contract
Conditions to Closing Date. The obligation obligations of each Lender the Lenders to make Loans hereunder shall not become effective until the Initial Term Loans Closing Date which is subject scheduled to occur upon the satisfaction of the following conditions precedent (or waiver thereof in accordance with Section 10.01):precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) and unless otherwise specified, each properly executed by a Responsible Officer an authorized officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, each dated as of the Closing Date;
(ii) a Term Note Notes executed by the Borrower in favor of each Lender that has requested a Term Note at least five (5) Business Days in advance requesting such Notes, each dated as of the Closing Date;
(iii) executed counterparts of the Guaranty from each of the Loan Parties listed on the signature pages thereto;
(iv) each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party thereto, together with (except as provided in such Collateral Documents):
(A) certificates, if any, representing the pledged equity referred to therein accompanied by undated stock powers executed in blank and (if applicable) instruments evidencing the pledged debt referred to therein endorsed in blank; and
(B) evidence that all other actions, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent and Collateral Agent; provided that if, notwithstanding the Borrower’s use of commercially reasonable efforts without undue burden or expense to cause this clause (iv) to be satisfied on the Closing Date, the requirements hereof (other than (a) the execution of each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule by each Loan Party thereto, (b) the pledge and perfection of security interests in the certificated Equity Interests (to the extent possession of such certificates perfects a security interest therein) of each direct Subsidiary of the Borrower that is a Material Subsidiary that constitutes a Domestic Subsidiary (provided that such Equity Interests are not Excluded Equity) and (c) delivery of Uniform Commercial Code financing statements (other than fixture filings on real estate) with respect to perfection of security interests in the assets of the Loan Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code) are not satisfied as of the Closing Date, the satisfaction of such requirements shall not be a condition to the making of the Initial Term Loans to the Borrower on the Closing Date (but shall be required to be satisfied as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.12) (which shall be no earlier than 60 days after the Closing Date);
(v) a certificate of each Loan Party, certified by a secretary or other Responsible Officer (1) copies of Organization Documents of the Loan Parties (including any by-laws or other applicable operating agreement of the Loan Parties), (2) resolutions or other action, (3) good standing certificates, and (4) incumbency certificates and/or other certificates of Responsible Officers officers of each Loan Party as the Administrative Agent may reasonably require evidencing to establish the identity, identities of and verify the authority and capacity of each Responsible Officer officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party party;
(iv) such evidence as the Administrative Agent may reasonably require to verify that each Loan Party and the General Partner is duly organized or formed, validly existing, in good standing in the jurisdiction of its organization;
(v) a certificate signed by an a Responsible Officer of the Borrower certifying (A) that the representations and warranties contained in Article V are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that are already qualified as to materiality in the text thereof) on and as of such date, (B) no Default or Event of Default has occurred and is continuing as of such date, (C) since December 31, 2012 there has occurred no event or condition that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (D) there is no litigation, investigation or proceeding known to and affecting the Borrower or any Borrower Affiliate for which the Borrower is required to give notice pursuant to Section 6.03(b) (or, if there is any such litigation, investigation or proceeding, then a notice containing the information required by Section 6.03(b) shall be given concurrently with the delivery of the certificate given pursuant to this clause (v)), and (E) no action, suit, investigation or proceeding is pending or threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower or any Borrower Affiliate, or any of their respective properties, that could reasonably be expected to have a party on the Closing DateMaterial Adverse Effect;
(vi) an opinion receipt of audited financial statements of the MLP as of December 31, 2012, unaudited financial statements of the MLP as of June 30, 2013, and such other financial information as the Administrative Agent may reasonably request;
(vii) opinions from (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to each Loan Party and the General Partner, and (ii) ▇▇▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇, counsel to each Loan Party and the General Partner, in each case, addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties;
(vii) a certificate signed by a Responsible Officer of Parties and the Borrower certifying that (A) since March 12, 2021, there shall not have occurred and be continuing, any -89- change, event, occurrence, state of facts or development that has had, or would Loan Documents as the Administrative Agent may reasonably be expected to have, a Company Material Adverse Effect and (B) the condition set forth in clause (c)(ii) below is satisfiedrequest;
(viii) a certificate substantially in the form evidence of Exhibit K attesting to the Solvency termination of the Borrower Commitments as defined in Existing Credit Agreement and its Subsidiaries (on a consolidated basis) on repayment or refinancing of all loans thereunder simultaneously with the Closing Date after giving effect to the Transaction, from the Borrower’s chief financial officer or other officer with equivalent dutiesDate; and
(ix) a Committed Loan Notice relating to such other assurances, certificates, documents, consents or opinions as the Credit Extension to be made on Administrative Agent or the Closing DateRequired Lenders reasonably may require.
(b) All Any fees required to be paid on due and payable at the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid hereunder or pursuant to the Fee Letter, to the extent invoiced at least three (3) Business Days prior to the Closing Date (except as otherwise agreed to by the Borrower), in each case, shall have been paid in full in cash or will be paid on the Closing Datepaid.
(c) Prior to or substantially simultaneously with the Closing Date, (i) the Equity Contribution in at least the amount set forth in the definition thereof The Borrower shall have been consummated and (ii) the Acquisition shall be consummated in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects of any such requests) by the Borrower that are materially adverse to the interests of the Lenders or the Administrative Agent, without the prior consent paid Attorney Costs of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that any modification, amendment, supplement, consent, waiver or request that results in (a) any decrease in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent extent invoiced prior to, or Lenders so long as such decrease reducedon, on a dollar-for-dollar basis, the aggregate amount of the Initial Term Loans, (b) any increase in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as funded with proceeds of common equity or preferred equity that does not constitute Disqualified Equity Interests and (c) any adverse amendment to the definition of “Company Material Adverse Effect” is materially adverse to the interests of the Lenders and Administrative Agent ).
(d) The Administrative Agent shall have received (i) the Audited Financial Statements and (ii) the Unaudited Financial Statements.
(e) Prior to or substantially simultaneously with the Closing Date, . Without limiting the Refinancing shall have been consummated.
(f) The Specified Acquisition Agreement Representations shall be true and correct in all material respects on and as generality of the Closing Dateprovisions of Section 9.03, and the Specified Representations shall be true and correct in all material respects on and as of the Closing Date; provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(g) The Administrative Agent shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors as has been reasonably requested in writing at least five (5) Business Days prior to the Closing Date by the Administrative Agent that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act. For for purposes of determining whether compliance with the Closing Date has occurredconditions specified in this Section 4.01, each Lender that has executed signed this Agreement shall be deemed to have consented to, approved or accepted, accepted or to be satisfied with, each document or other matter required hereunder thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent or shall have received notice from such Lender, as the case may be, unless such ▇▇▇▇▇▇ has notified the Administrative Agent of any disagreement Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall notify the Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Sources: 364 Day Revolving Credit Agreement (Sunoco Logistics Partners L.P.)
Conditions to Closing Date. The obligation of each Lender to make Each Lender’s respective Commitments hereunder shall become effective, on the Initial Term Loans is terms and subject to the other conditions set forth herein, upon the satisfaction of the following conditions precedent (or waiver thereof (in accordance with Section 10.01):) of the following conditions precedent:
(a) The Administrative Agent’s receipt Agent shall have received all of the following, each of which shall be originals or facsimiles or “.pdf” files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, if applicable, each dated as of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Date), each in form and substance reasonably satisfactory to the Administrative Agent Agent, and each accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to the Borrower and its legal counsel:Subsidiaries, giving effect to the Transactions):
(i) executed counterparts of (A) this Agreement;
Agreement from the Borrower, (iiB) a Term Note executed by the Borrower in favor of each Lender that has requested a Term Note at least five (5) Business Days in advance of the Closing Date;
(iii) executed counterparts of the Guaranty from each of Guarantor and (C) the Loan Parties listed on Security Agreement from the signature pages thereto;
(iv) Borrower and each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party thereto, Guarantor; together with (except as provided in such Collateral Documentssubject to the last paragraph of this Section 4.01):
(A) certificatescopies of proper financing statements, if anyfiled or duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens on assets of the Borrower and the Guarantors created under the Security Agreement and the Pledge Agreement, representing covering the pledged equity referred to therein accompanied by undated stock powers executed Collateral described in blank and (if the Security Agreement or the Pledge Agreement, as applicable) instruments evidencing the pledged debt referred to therein endorsed in blank; and,
(B) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent or Collateral Agent may deem reasonably necessary or desirable in order to satisfy perfect and protect the Collateral and Guarantee Requirement Liens created thereby shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (including receipt of duly executed payoff letters, customary lien searches and Collateral Agent; provided that ifUCC-3 termination statements), notwithstanding the Borrower’s use of commercially reasonable efforts without undue burden or expense to cause this clause and
(iv) to be satisfied on the Closing Date, the requirements hereof (other than (aC) the execution of each Collateral Document set forth on Schedule 1.01A required to be Pledge Agreement, duly executed on by the Closing Date as indicated on such schedule by each Loan Party theretoBorrower and the Guarantors, together with (b) the pledge and perfection of security interests in the certificated Equity Interests (subject to the extent possession last paragraph of this Section 4.01) certificates, if any, representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank,
(ii) such customary certificates perfects a security interest therein) of each direct Subsidiary of resolutions or other action authorizing the Borrower that is a Material Subsidiary that constitutes a Domestic Subsidiary (provided that such Equity Interests are not Excluded Equity) execution, delivery and (c) delivery of Uniform Commercial Code financing statements (other than fixture filings on real estate) with respect to perfection of security interests in the assets performance of the Loan Parties that may be perfected by Documents to which such Person is a party and, in the filing of a financing statement under the Uniform Commercial Code) are not satisfied as case of the Closing DateBorrower, the satisfaction of such requirements shall not be a condition to the making of the Initial Term Loans to the Borrower on the Closing Date (but shall be required to be satisfied as promptly as practicable after the Closing Date borrowings and in any event within the period specified therefor in Schedule 6.12) (which shall be no earlier than 60 days after the Closing Date);
(v) a certificate of each Loan Partyother transactions hereunder, certified by a secretary or other Responsible Officer (1) copies of Organization Documents of the Loan Parties (including any by-laws or other applicable operating agreement of the Loan Parties), (2) resolutions or other action, (3) good standing certificates, and (4) incumbency certificates and/or other certificates of Responsible Officers of the Borrower and each Loan Party Guarantor as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party each of the Borrower and the Guarantors is a party or is to be a party on party;
(iii) such documents and certifications (including Organization Documents and, if applicable, good standing certificates) as the Closing DateAdministrative Agent may reasonably require to evidence that the Borrower and each Guarantor is duly organized or formed, and that each of them is validly existing and in good standing, except, other than with respect to the Borrower, to the extent that failure to be in good standing could not reasonably be expected to have a Material Adverse Effect;
(iv) a Committed Loan Notice and a Letter of Credit Application, if applicable, in each case relating to the initial Credit Extension;
(v) a solvency certificate from a financial officer of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit I;
(vi) an opinion of Debevoise & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(vii) a certificate signed by a Responsible Officer opinions of local counsel for the Loan Parties listed on Schedule 4.01(a) hereto, in form and substance reasonably satisfactory to the Administrative Agent; and
(viii) opinions of FCC counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent.
(b) Since (x) December 31, 2012 through the date of the Borrower certifying Purchase Agreement, there has not occurred any event, development, change or effect that has had or could reasonably be expected to have, individually or in the aggregate, a Target Material Adverse Effect and (Ay) since March 12, 2021the date of the Purchase Agreement, there shall not have occurred a Target Material Adverse Effect.
(c) The Borrower and each Guarantor shall have provided the documentation and other information reasonably requested in writing at least ten (10) days prior to the Closing Date by the Lenders that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, in each case at least three Business Days prior to the Closing Date (or such shorter period as the Administrative Agent shall otherwise agree).
(d) All actions necessary to establish that the Collateral Agent will have a perfected security interest (subject to no Liens other than the Liens permitted under Section 7.01) in the Collateral shall have been taken, in each case, to the extent such Collateral (including the creation or perfection of any security interest) is required to be continuing, any -89- change, event, occurrence, state provided on the Closing Date pursuant to the last paragraph of facts or development that has hadthis Section 4.01.
(e) The Acquisition shall have been consummated, or would reasonably substantially simultaneously with the initial borrowing under the Facilities, shall be expected consummated, in all material respects in accordance with the terms of the Purchase Agreement, without giving effect to haveany modifications or amendments, or any consents or waivers thereunder by the Borrower that are materially adverse to the Lenders or the Arrangers without the prior consent of the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) (it is understood and agreed that any change in the purchase price in connection with the Acquisition shall not be deemed to be materially adverse to the interests of the Lenders and the Arrangers; provided that (A) any reduction of the purchase price to the extent resulting in a Company Material Adverse Effect lower cash funding by the Borrower shall be allocated to a reduction of the Term Facility, and (B) the condition set forth any increase in clause (c)(ii) below is satisfied;
(viii) a certificate substantially in the form of Exhibit K attesting to the Solvency of the Borrower and its Subsidiaries (on a consolidated basis) on the Closing Date after giving effect to the Transaction, from purchase price may be funded with the Borrower’s chief financial officer cash or other officer with equivalent duties; and
(ix) a Committed Loan Notice relating to the Credit Extension to be made on the Closing DateNet Cash Proceeds of any Permitted Equity Issuance.
(bf) The Specified Purchase Agreement Representations shall be true and correct in all material respects.
(g) The Specified Representations shall be true and correct in all material respects.
(h) The Transaction Refinancings shall have been, or substantially contemporaneously with the initial borrowing hereunder, shall be consummated.
(i) All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid hereunder or on the Closing Date pursuant to the Fee Commitment Letter, to the extent invoiced in reasonable detail at least three (3) Business Days prior to the Closing Date (except or such later date as otherwise agreed to by the Borrower)Borrower may reasonably agree) shall, in each caseupon the initial borrowing under the Facility, shall have been paid in full in (which amounts may be offset against the proceeds of the Facility).
(j) The Arrangers shall have received (a) audited consolidated balance sheets of the Borrower and related statements of operations, stockholders’ equity and cash or will be paid on flows of the Borrower for the three (3) most recently completed Fiscal Years ended at least 120 days before the Closing Date.
; provided (ci) Prior that the financial statements in respect of the Fiscal Years ended December 2010 and 2011 are not required to or be audited and (ii) such audited financial statements may include a disclaimer of opinion arising out of the scope limitation of the audit substantially simultaneously with similar to that set forth in the Report of Independent Auditors dated as of May 31, 2013), (b) unaudited combined balance sheets of the Target and related statements of operations, stockholders’ equity and cash flows of the Target for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date, (ic) audited consolidated balance sheets of Local TV, LLC (“Local”), for the Equity Contribution in two (2) most recently completed fiscal years ended at least 120 days before the amount set forth Closing Date and the related consolidated audited statements of operations and cash flows of Local for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (c), the definition thereof shall “Local TV Audited Financial Statements”), (d) audited consolidated balance sheets of FoxCo Acquisition, LLC (“FoxCo”), for the two (2) most recently completed fiscal years ended at least 120 days before the Closing Date and the related consolidated audited statements of operations and cash flows of FoxCo for the three (3) most recently completed fiscal years ended at least 120 days before the Closing Date (such financial statements referenced in this clause (d), the “FoxCo Audited Financial Statements”), (e) unaudited consolidated balance sheets and related statements of operations and cash flows of the Borrower, for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been consummated and (ii) the Acquisition shall be consummated in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect delivered pursuant to any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects of any such requests) by the Borrower that are materially adverse to the interests of the Lenders or the Administrative Agent, without the prior consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that any modification, amendment, supplement, consent, waiver or request that results in clause (a) above ended at least 60 days before the Closing Date (other than any decrease in fiscal fourth quarter) (the consideration for the Acquisition shall be deemed not to be materially adverse to the interests “Tribune Quarterly Financial Statements”) and (f) unaudited consolidated balance sheets and related statements of operations and cash flows of each of the Administrative Agent or Lenders so long as such decrease reducedTarget, on a dollar-for-dollar basis, Local and FoxCo for each subsequent fiscal quarter after the aggregate amount of the Initial Term Loans, most recent completed fiscal year for which financials have been delivered pursuant to clauses (b) any increase in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as funded with proceeds of common equity or preferred equity that does not constitute Disqualified Equity Interests and ), (c) and (d) above ended at least 60 days before the Closing Date (other than any adverse amendment to the definition of “Company Material Adverse Effect” is materially adverse to the interests of the Lenders and Administrative Agent fiscal fourth quarter).
(dk) The Administrative Agent Arrangers shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of operations of the Borrower and its Subsidiaries (ibased on the financial statements of the Borrower and the Target referred to in clause (j) the Audited Financial Statements and (iiabove) the Unaudited Financial Statements.
(e) Prior to or substantially simultaneously with the Closing Date, the Refinancing shall have been consummated.
(f) The Specified Acquisition Agreement Representations shall be true and correct in all material respects on and as of and for the Closing Date, and twelve-month period ending on the Specified Representations shall be true and correct in all material respects on and as last day of the Closing Date; provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(g) The Administrative Agent shall have received most recently completed four-fiscal quarter period ended at least three (3) Business Days 60 days prior to the Closing Date all documentation and other information about (or, if the Borrower and most recently completed fiscal period is the Guarantors as has been reasonably requested in writing end of a fiscal year, ended at least five 120 days before the Closing Date), prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (5in the case of such balance sheet) Business Days prior to or at the beginning of such period (in the case of such other financial statements), which need not be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender as of the Closing Date by the Administrative Agent that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act. For purposes of determining whether the Closing Date has occurred, each Lender that has executed this Agreement shall be deemed to have consented to, approved or accepted, accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent or shall have received written notice from such Lender, as the case may be, unless such ▇▇▇▇▇▇ has notified the Administrative Agent of any disagreement Lender prior to the Closing DateDate specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Tribune Media Co)
Conditions to Closing Date. The obligation of each Lender to make the Initial Term Loans its initial Credit Extension hereunder is subject to the satisfaction of the following conditions precedent (or waiver thereof in accordance with Section 10.01):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals facsimiles or facsimiles (followed promptly by originals) other electronic copies unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (other than in respect of clause (a)(v) below), each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this AgreementAgreement from the Borrower and each Lender with a Loan or Commitment outstanding as of the Closing Date;
(ii) a Term Note executed by the Borrower in favor of each Lender that has requested a Term Note at least five (5) Business Days in advance of the Closing Date;
(iii) executed counterparts of the Guaranty from each of the Loan Parties listed on the signature pages thereto;
(iv) each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party party thereto, together with (except as provided in such Collateral Documents):);
(A) certificates, if any, representing the pledged equity referred to therein therein, accompanied by undated stock powers powers, if applicable, executed in blank and (if applicable) instruments evidencing the pledged debt referred to therein endorsed in blank; and
(B) evidence that all other actions, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent and Collateral Agent(including, without limitation, a perfection certificate duly executed by each Loan Party); provided that if, notwithstanding the Borrower’s use of commercially reasonable efforts without undue burden or expense to cause this clause (iviii) to be satisfied on the Closing Date, the requirements hereof (other than (a) the execution of each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule by each Loan Party party thereto, (b) the pledge and perfection of security interests in the certificated Equity Interests of (to i) the extent possession of such certificates perfects a security interest thereinBorrower and (ii) of each direct Wholly Owned Subsidiary of the Borrower that is a Material Subsidiary that constitutes a Domestic Subsidiary (provided that such Equity Interests are not Excluded Equity) and ), (c) delivery of Uniform Commercial Code financing statements (other than fixture filings on real estate) with respect to perfection of security interests in the assets of the Loan Parties that may be perfected by the filing of a financing statement under the Uniform Commercial CodeCode and (d) the delivery of documents in a form sufficient to affect the recordation of security interests with the United States Copyright Office or United States Patent and Trademark Office with respect to perfection of security interests in the assets of the Loan Parties that may be perfected by filing with the United States Copyright Office or United States Patent and Trademark Office) are not satisfied as of the Closing Date, the satisfaction of such requirements shall not be a condition to the making release of the Initial Term Loans initial Credit Extension to the Borrower on the Closing Date (but shall be required to be satisfied as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.12) (which shall be no earlier than 60 days after this proviso, the Closing Date“Certain Funds Provision”);
(viv) a certificate of each Loan Party(A) such certificates, certified by a secretary or other Responsible Officer (1) copies of Organization Documents of the Loan Parties (including any by-laws or other applicable operating agreement of the Loan Parties), (2) resolutions or other action, (3) good standing certificates, action and (4) incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Closing DateDate and (B) a good standing certificate (to the extent applicable) in the jurisdiction of organization of the Borrower and each Guarantor;
(viv) an opinion of ▇▇from Bass, ▇▇▇▇▇ LLP& ▇▇▇▇ PLC, counsel to the Loan Parties;
(viivi) a certificate signed by a Responsible Officer of the Borrower certifying that (A) since March 12, 2021, there shall not have occurred and be continuing, any -89- change, event, occurrence, state of facts or development that has had, or would reasonably be expected to have, a Company Material Adverse Effect and (B) the condition conditions set forth in clause clauses (c)(iid), (e), (f) and (h) below is are satisfied;
(viii) vii a certificate substantially in the form of Exhibit K attesting to the Solvency of the Borrower and its Subsidiaries (Subsidiaries, on a consolidated basis) , on the Closing Date after giving effect to the TransactionTransactions, from the Borrower’s chief financial officer or other officer with equivalent duties; and
(ix) a Committed Loan Notice relating to the Credit Extension to be made on the Closing Date.
(b) All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid hereunder or pursuant to the Fee Letter, to the extent invoiced at least three (3) Business Days prior to the Closing Date (except as otherwise agreed to by duties of the Borrower), in each case, shall have been paid in full in cash or will be paid on substantially the Closing Date.
(c) Prior to or substantially simultaneously with the Closing Date, (i) the Equity Contribution in at least the amount set forth in the definition thereof shall have been consummated and (ii) the Acquisition shall be consummated in all material respects in accordance with the terms form of the Acquisition Agreement, after giving effect to any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects of any such requests) by the Borrower that are materially adverse to the interests of the Lenders or the Administrative Agent, without the prior consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that any modification, amendment, supplement, consent, waiver or request that results in (a) any decrease in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as such decrease reduced, on a dollar-for-dollar basis, the aggregate amount of the Initial Term Loans, (b) any increase in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as funded with proceeds of common equity or preferred equity that does not constitute Disqualified Equity Interests and (c) any adverse amendment to the definition of “Company Material Adverse Effect” is materially adverse to the interests of the Lenders and Administrative Agent ).
(d) The Administrative Agent shall have received (i) the Audited Financial Statements and (ii) the Unaudited Financial Statements.
(e) Prior to or substantially simultaneously with the Closing Date, the Refinancing shall have been consummated.
(f) The Specified Acquisition Agreement Representations shall be true and correct in all material respects on and as of the Closing Date, and the Specified Representations shall be true and correct in all material respects on and as of the Closing Date; provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(g) The Administrative Agent shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors as has been reasonably requested in writing at least five (5) Business Days prior to the Closing Date by the Administrative Agent that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act. For purposes of determining whether the Closing Date has occurred, each Lender that has executed this Agreement shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or such Lender, as the case may be, unless such ▇▇▇▇▇▇ has notified the Administrative Agent of any disagreement prior to the Closing Date.Exhibit M;
Appears in 1 contract
Sources: Credit Agreement (Holley Inc.)
Conditions to Closing Date. The obligation occurrence of each Lender to make the Initial Term Loans Closing Date hereunder is subject to satisfaction of the following conditions precedent (or waiver thereof in accordance with Section 10.01):precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counseleach of the Lenders:
(i) executed counterparts of this Agreement, the Guaranty, the Security Agreement, the Account Control Agreements relating to the Specified Accounts and the Fee Letter, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Term Note executed by the Borrower in favor of each Lender that has requested requesting a Term Note at least five (5) Business Days in advance of the Closing DateNote;
(iii) completed and duly executed counterparts of the Guaranty perfection certificates from each of the Loan Parties listed on the signature pages theretoParty;
(iv) each Collateral Document set forth completed requests for information, dated on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party thereto, together with (except as provided in such Collateral Documents):
(A) certificates, if any, representing the pledged equity referred to therein accompanied by undated stock powers executed in blank and (if applicable) instruments evidencing the pledged debt referred to therein endorsed in blank; and
(B) evidence that all other actions, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent and Collateral Agent; provided that if, notwithstanding the Borrower’s use of commercially reasonable efforts without undue burden or expense to cause this clause (iv) to be satisfied on before the Closing Date, the requirements hereof (other than (a) the execution of each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule by each listing all effective financing statements that name any Loan Party theretoas debtor, (b) the pledge and perfection of security interests in the certificated Equity Interests (to the extent possession together with copies of such certificates perfects a security interest therein) of each direct Subsidiary of the Borrower that is a Material Subsidiary that constitutes a Domestic Subsidiary (provided that such Equity Interests are not Excluded Equity) and (c) delivery of Uniform Commercial Code financing statements (other than fixture filings on real estate) with respect to perfection of security interests in the assets of the Loan Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code) are not satisfied as of the Closing Date, the satisfaction of such requirements shall not be a condition to the making of the Initial Term Loans to the Borrower on the Closing Date (but shall be required to be satisfied as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.12) (which shall be no earlier than 60 days after the Closing Date)statements;
(v) a certificate such certificates of each Loan Party, certified by a secretary or other Responsible Officer (1) copies of Organization Documents of the Loan Parties (including any by-laws or other applicable operating agreement of the Loan Parties), (2) resolutions or other action, (3) good standing certificates, and (4) incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Closing Dateparty;
(vi) an such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Borrower and the other Loan Parties is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vii) a favorable opinion of ▇▇▇▇▇▇▇ LLPMintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viiviii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying that (A) that the conditions specified in Sections 4.03(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since March 12, 2021, there shall not have occurred and be continuing, any -89- change, event, occurrence, state the date of facts or development the Audited Financial Statements that has had, had or would could be reasonably be expected to have, either individually or in the aggregate, a Company Material Adverse Effect and (B) the condition set forth in clause (c)(ii) below is satisfiedEffect;
(viiix) a certificate substantially in the form of Exhibit K attesting to the Solvency business plan and pro forma forecast of the Borrower and its Subsidiaries (on a consolidated basis, including forecasts prepared by the Borrower, of consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on a quarterly basis for the 2010, 2011 and 2012 fiscal years of the Borrower and its Subsidiaries;
(xi) on certificate of the Closing Date Borrower attesting to its Solvency and the Solvency of the Loan Parties taken as a whole, in each case, both before and after giving effect to the Transactiontransactions contemplated by the Loan Documents, from the Borrower’s its chief financial officer or other officer with equivalent dutiescontroller;
(xii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; and
(ixxiii) a Committed Loan Notice relating to such other assurances, certificates, documents, consents or opinions as the Credit Extension to be made on the Closing DateAdministrative Agent or any Lender reasonably may require.
(b) All Any fees required to be paid on or before the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid hereunder or pursuant to the Fee Letter, to the extent invoiced at least three (3) Business Days prior to the Closing Date (except as otherwise agreed to by the Borrower), in each case, shall have been paid in full in cash or will be paid on the Closing Datepaid.
(c) Prior Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or substantially simultaneously with on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (i) the Equity Contribution in at least the amount set forth in the definition thereof provided that such estimate shall have been consummated and (ii) the Acquisition shall be consummated in all material respects in accordance with the terms not thereafter preclude a final settling of the Acquisition Agreement, after giving effect to any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects of any such requests) by accounts between the Borrower that are materially adverse to the interests of the Lenders or and the Administrative Agent, without the prior consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that any modification, amendment, supplement, consent, waiver or request that results in (a) any decrease in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as such decrease reduced, on a dollar-for-dollar basis, the aggregate amount of the Initial Term Loans, (b) any increase in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as funded with proceeds of common equity or preferred equity that does not constitute Disqualified Equity Interests and (c) any adverse amendment to the definition of “Company Material Adverse Effect” is materially adverse to the interests of the Lenders and Administrative Agent ).
(d) The Administrative Agent Lenders shall have completed a due diligence investigation of the Borrower and its Subsidiaries in scope, and with results, satisfactory to the Lenders, and shall have been given such access to the management, records, books of account, contracts and properties of the Borrower and its Subsidiaries and shall have received (i) the Audited Financial Statements and (ii) the Unaudited Financial Statements.
(e) Prior to or substantially simultaneously with the Closing Datesuch financial, the Refinancing shall have been consummated.
(f) The Specified Acquisition Agreement Representations shall be true and correct in all material respects on and as of the Closing Date, and the Specified Representations shall be true and correct in all material respects on and as of the Closing Date; provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(g) The Administrative Agent shall have received at least three (3) Business Days prior to the Closing Date all documentation business and other information about regarding each of the Borrower foregoing Persons and businesses as they shall have requested. Without limiting the Guarantors as has been reasonably requested in writing at least five (5) Business Days prior to generality of the Closing Date by provisions of the Administrative Agent that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationslast paragraph of Section 9.03, including without limitation the USA PATRIOT Act. For for purposes of determining whether compliance with the Closing Date has occurredconditions specified in this Section 4.01, each Lender that has executed signed this Agreement shall be deemed to have consented to, approved or accepted, accepted or to be satisfied with, each document or other matter required hereunder thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent or shall have received notice from such Lender, as the case may be, unless such ▇▇▇▇▇▇ has notified the Administrative Agent of any disagreement Lender prior to the proposed Closing DateDate specifying its objection thereto.
Appears in 1 contract
Conditions to Closing Date. The obligation of each Lender to make the Initial Term Loans is subject to satisfaction Lenders’ Commitments shall not become effective hereunder unless all of the following conditions precedent have been satisfied (or waiver thereof waived in accordance with Section 10.01):
(a) The Unless waived by all the Lenders (or by the Administrative Agent), the Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyCompany (where applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counselAgent:
(i) executed counterparts of this Agreement, signed on behalf of each party hereto or written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement;
(ii) a Term Note executed by the Borrower in favor of each Lender that has requested a Term Note at least five (5) Business Days in advance of the Closing Date;
(iii) executed counterparts of the Guaranty from each of the Loan Parties listed on the signature pages thereto;
(iv) each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party thereto, together with (except as provided in such Collateral Documents):
(A) certificates, if any, representing the pledged equity referred to therein accompanied by undated stock powers executed in blank and (if applicable) instruments evidencing the pledged debt referred to therein endorsed in blank; and
(B) evidence that all other actions, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent and Collateral Agent; provided that if, notwithstanding the Borrower’s use of commercially reasonable efforts without undue burden or expense to cause this clause (iv) to be satisfied on the Closing Date, the requirements hereof (other than (a) the execution of each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule by each Loan Party thereto, (b) the pledge and perfection of security interests in the certificated Equity Interests (to the extent possession of such certificates perfects a security interest therein) of each direct Subsidiary of the Borrower that is a Material Subsidiary that constitutes a Domestic Subsidiary (provided that such Equity Interests are not Excluded Equity) and (c) delivery of Uniform Commercial Code financing statements (other than fixture filings on real estate) with respect to perfection of security interests in the assets of the Loan Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code) are not satisfied as of the Closing Date, the satisfaction of such requirements shall not be a condition to the making of the Initial Term Loans to the Borrower on the Closing Date (but shall be required to be satisfied as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.12) (which shall be no earlier than 60 days after the Closing Date);
(v) a certificate of each Loan Party, certified by a secretary or other Responsible Officer (1) copies of Organization Documents of the Loan Parties (including any by-laws or other applicable operating agreement of the Loan Parties), (2) resolutions or other actionaction of the Board of Directors of each Borrower, (3) good standing certificates, and (4) incumbency certificates and/or other certificates of Responsible Officers the Secretary or Assistant Secretary of each Loan Party as Borrower establishing the Administrative Agent may reasonably require evidencing identities of and verifying the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party Borrower is a party or is to be a party on the Closing Dateparty;
(viiii) an opinion evidence verifying that each Borrower is duly organized or formed, validly existing, in good standing and qualified to engage in business in the jurisdiction of ▇▇▇▇▇▇▇ LLP, counsel to the Loan Partiesits incorporation;
(viiiv) a certificate signed by a Responsible Officer of the each Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements which has had or could reasonably be expected to have a Material Adverse Effect; and (C) the current Senior Debt Ratings;
(v) an opinion of counsel to the Borrowers, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Borrowers, the Loan Documents and the transactions contemplated therein as the Administrative Agent shall reasonably request;
(vi) evidence that (A) since March 12the Company has delivered notice of its termination of commitments under the Existing Credit Agreement to the administrative agent three Business Days prior to the Closing Date, 2021, there shall not have occurred and be continuing, any -89- change, event, occurrence, state of facts or development that has had, or would reasonably be expected to have, a Company Material Adverse Effect and (B) that all amounts outstanding under the condition set forth in clause Existing Credit Agreement have been paid (c)(iiincluding, without limitation, principal, interest and fees), provided that all such amounts may be repaid substantially simultaneously with Loan(s) below is satisfiedadvanced under this Agreement, and (C) that the “commitments” of the lenders under the Existing Credit Agreement have been or concurrently with the Closing Date are being terminated;
(viiivii) a certificate substantially in the form of Exhibit K attesting to the Solvency of the Borrower and its Subsidiaries (on a consolidated basis) on the Closing Date after giving effect to the Transaction, from the Borrower’s chief financial officer or other officer with equivalent duties; and
(ix) a Committed Loan Notice relating to the duly executed Request for Credit Extension for any Credit Extension to be made on the Closing Date.;
(bviii) All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid hereunder or pursuant to the Fee Lettera duly executed funds disbursement agreement, to the extent invoiced if applicable;
(ix) (A) at least three (3) Business Days five days prior to the Closing Date (except as otherwise agreed to by the Borrower), in each case, shall have been paid in full in cash or will be paid on the Closing Date.
(c) Prior to or substantially simultaneously with the Closing Date, (i) the Equity Contribution in at least the amount set forth in the definition thereof shall have been consummated and (ii) the Acquisition shall be consummated in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects of any such requests) by the Borrower that are materially adverse to the interests of the Lenders or the Administrative Agent, without the prior consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that any modification, amendment, supplement, consent, waiver or request that results in (a) any decrease in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as such decrease reduced, on a dollar-for-dollar basis, the aggregate amount of the Initial Term Loans, (b) any increase in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as funded with proceeds of common equity or preferred equity that does not constitute Disqualified Equity Interests and (c) any adverse amendment to the definition of “Company Material Adverse Effect” is materially adverse to the interests of the Lenders and Administrative Agent ).
(d) The Administrative Agent shall have received (i) the Audited Financial Statements and (ii) the Unaudited Financial Statements.
(e) Prior to or substantially simultaneously with the Closing Date, the Refinancing shall have been consummated.
(f) The Specified Acquisition Agreement Representations shall be true and correct in all material respects on and as of the Closing Date, and the Specified Representations shall be true and correct in all material respects on and as of the Closing Date; provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(g) The Administrative Agent shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about regarding the Borrower and the Guarantors as has been reasonably Company requested in writing at least five (5) Business Days prior to the Closing Date by the Administrative Agent that they reasonably determine is required by regulatory authorities under connection with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Patriot Act, to the extent requested in writing of the Company at least 10 days prior to the Closing Date and (B) to the extent the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Closing Date, any Lender that has requested, in a written notice to the Company at least 10 days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Company shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ix) shall be deemed to be satisfied);
(x) evidence reasonably satisfactory to the Administrative Agent that arrangements have been made by the Company or its counsel for the payment of the Florida documentary stamp tax in respect of each promissory note provided to a requesting Lender pursuant to Section 2.10(c) on or about the Closing Date; and
(xi) such other certificates, documents or consents as the Administrative Agent reasonably requires.
(b) Any fees required to be paid on or before the Closing Date in connection herewith shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced at least one Business Day prior to the Closing Date, plus such additional amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimates of Attorney Costs incurred or to be incurred by each of them through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). For Without limiting the generality of the provisions of Section 4.01, for purposes of determining whether compliance with the Closing Date has occurredconditions specified in this Section 4.01, each Lender that has executed signed this Agreement shall be deemed to have consented to, approved or accepted, accepted or to be satisfied with, each document or other matter required hereunder thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent or shall have received notice from such Lender, as the case may be, unless such ▇▇▇▇▇▇ has notified the Administrative Agent of any disagreement Lender prior to the proposed Closing DateDate specifying its objection thereto.
Appears in 1 contract
Conditions to Closing Date. The obligation effectiveness of each Lender to make the Initial Term Loans this credit facility is subject to satisfaction or waiver of the following conditions precedent (or waiver thereof in accordance with Section 10.01):precedent:
(a) The Administrative Agent’s (or its counsel) receipt of the following, each of which shall be originals or facsimiles telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower (as applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:Agent: hereof;
(i) executed counterparts of this Agreement;
(ii) a Term Note executed by Request for Credit Extension in accordance with the Borrower in favor of each Lender that has requested a Term Note at least five (5) Business Days in advance of the Closing Date;requirements
(iii) executed counterparts of the Guaranty from each of the Loan Parties listed on the signature pages thereto[Reserved];
(iv) each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party thereto, together with (except as provided in such Collateral Documents):
(A) certificates, if any, representing the pledged equity referred to therein accompanied by undated stock powers executed in blank and (if applicable) instruments evidencing the pledged debt referred to therein endorsed in blank; and
(B) evidence that all other actions, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent and Collateral Agent; provided that if, notwithstanding the Borrower’s use of commercially reasonable efforts without undue burden or expense to cause this clause (iv) to be satisfied on the Closing Date, the requirements hereof (other than (a) the execution of each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule by each Loan Party thereto, (b) the pledge and perfection of security interests in the certificated Equity Interests (to the extent possession of such certificates perfects a security interest therein) of each direct Subsidiary of the Borrower that is a Material Subsidiary that constitutes a Domestic Subsidiary (provided that such Equity Interests are not Excluded Equity) and (c) delivery of Uniform Commercial Code financing statements (other than fixture filings on real estate) with respect to perfection of security interests in the assets of the Loan Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code) are not satisfied as of the Closing Date, the satisfaction of such requirements shall not be a condition to the making of the Initial Term Loans to the Borrower on the Closing Date (but shall be required to be satisfied as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.12) (which shall be no earlier than 60 days after the Closing Date);
(v) a certificate of each Loan Party, certified by a secretary or other Responsible Officer (1) copies of Organization Documents of the Loan Parties (including any by-laws or other applicable operating agreement of the Loan Parties), (2) resolutions or other action, (3) good standing certificates, and (4) incumbency certificates and/or other certificates of Responsible Officers of each Loan Party the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party the Borrower is a party party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a party on the Closing DateMaterial Adverse Effect;
(vi) an a favorable opinion letter of ▇▇▇▇▇▇▇ Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and the Initial Lender and covering such matters relating to the Loan PartiesDocuments as the Administrative Agent may reasonably require;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying certifying(A) that the representations and warranties of the Borrower contained in Sections 5.01(a), 5.01(b)(ii), 5.02(a) and (Ac) since March 12, 2021, there shall not have occurred and be continuing, any -89- change, event, occurrence, state 5.04 are true and correct on and as of facts or development that has had, or would reasonably be expected to have, a Company Material Adverse Effect the Closing Date and (B) the condition set forth in clause current Debt Ratings (c)(ii) below is satisfied;if any); and 44 Cboe Global Markets, Inc. - Credit Agreement(Term Loan Credit Facility)
(viii) a certificate substantially in such other assurances, certificates, documents, consents or opinions as the form of Exhibit K attesting to Administrative Agent or the Solvency of the Borrower and its Subsidiaries (on a consolidated basis) on the Closing Date after giving effect to the Transaction, from the Borrower’s chief financial officer or other officer with equivalent duties; and
(ix) a Committed Loan Notice relating to the Credit Extension to be made on the Closing DateArranger reasonably may require.
(b) All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid hereunder or pursuant to the Fee Letter, to the extent invoiced at least three (3) Business Days prior to the Closing Date (except as otherwise agreed to by the Borrower), in each case, shall have been paid in full in cash or will be paid on the Closing Date.
(c) Prior to or substantially simultaneously with the Closing Date, (i) the Equity Contribution in at least the amount set forth in the definition thereof shall have been consummated and (ii) the Acquisition shall be consummated in all material respects in accordance with the terms Each of the Acquisition Agreement, after giving effect to any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects representations and warranties of any such requests) by the Borrower that are materially adverse to the interests of the Lenders contained in Article V or the Administrative Agent, without the prior consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that any modification, amendment, supplement, consent, waiver or request that results in (a) any decrease in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as such decrease reduced, on a dollar-for-dollar basis, the aggregate amount of the Initial Term Loans, (b) any increase in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as funded with proceeds of common equity or preferred equity that does not constitute Disqualified Equity Interests and (c) any adverse amendment to the definition of “Company Material Adverse Effect” is materially adverse to the interests of the Lenders and Administrative Agent ).
(d) The Administrative Agent shall have received (i) the Audited Financial Statements and (ii) the Unaudited Financial Statements.
(e) Prior to or substantially simultaneously with the Closing Date, the Refinancing shall have been consummated.
(f) The Specified Acquisition Agreement Representations other Loan Document shall be true and correct in all material respects on and as of the Closing Date, and the Specified Representations shall be true and correct in all material respects on and as of the Closing Date; provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective datesrespects.
(gc) No Default shall exist, or would result from the Credit Extensions or from the application of the proceeds therefrom.
(d) The Administrative Agent shall have received received, at least three (3) Business Days prior to the Closing Date Date, all documentation and other information about the Borrower and the Guarantors as has been reasonably requested in writing at least five (5) Business Days prior to the Closing Date by the Administrative Agent that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation limitation, the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), reasonably requested in writing by the Administrative Agent (on behalf of the Initial Lender) at least ten (10) Business Days prior to the Closing Date.
(e) Any fees required to be paid on or before the Closing Date shall have been paid.
(f) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented Attorney Costs (directly to such counsel if requested by the Administrative Agent) of the Administrative Agent to the extent invoiced at least three Business Days prior to the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of such Attorney Costs incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts among the Borrower and the Administrative Agent). For Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining whether compliance with the Closing Date has occurredconditions specified in this Section 4.01, each the Lender that has executed signed this Agreement shall be deemed to have consented to, approved or accepted, accepted or to be satisfied with, each document or other matter required hereunder thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent or such Lender, as shall have received notice from the case may be, unless such ▇▇▇▇▇▇ has notified the Administrative Agent of any disagreement Lender prior to the proposed Closing DateDate specifying its objection thereto.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Cboe Global Markets, Inc.)
Conditions to Closing Date. The obligation of each Lender to make the Initial Term Loans is subject to satisfaction of the following conditions precedent (or waiver thereof in accordance with Section 10.01):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement;
(ii) a Term Note executed by the Borrower in favor of each Lender that has requested a Term Note at least five (5) Business Days in advance of the Closing Date;
(iii) executed counterparts of the Guaranty from each of the Loan Parties listed on the signature pages thereto;
(iv) each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party thereto, together with (except as provided in such Collateral Documents):
(A) certificates, if any, representing the pledged equity referred to therein accompanied by undated stock powers executed in blank and (if applicable) instruments evidencing the pledged debt referred to therein endorsed in blank; and
(B) evidence that all other actions, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent and Collateral Agent; provided that if, notwithstanding the Borrower’s use of commercially reasonable efforts without undue burden or expense to cause this clause (iv) to be satisfied on the Closing Date, the requirements hereof (other than (a) the execution of each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule by each Loan Party thereto, (b) the pledge and perfection of security interests in the certificated Equity Interests (to the extent possession of such certificates perfects a security interest therein) of each direct Subsidiary of the Borrower that is a Material Subsidiary that constitutes a Domestic Subsidiary (provided that such Equity Interests are not Excluded Equity) and (c) delivery of Uniform Commercial Code financing statements (other than fixture filings on real estate) with respect to perfection of security interests in the assets of the Loan Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code) are not satisfied as of the Closing Date, the satisfaction of such requirements shall not be a condition to the making of the Initial Term Loans to the Borrower on the Closing Date (but shall be required to be satisfied as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.12) (which shall be no earlier than 60 days after the Closing Date);
(v) a certificate of each Loan Party, certified by a secretary or other Responsible Officer (1) copies of Organization Documents of the Loan Parties (including any by-laws or other applicable operating agreement of the Loan Parties), (2) resolutions or other action, (3) good standing certificates, and (4) incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Closing Date;
(vi) an opinion of ▇▇▇▇▇▇▇ Akerman LLP, counsel to the Loan Parties;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying that (A) since March 12, 2021, there shall not have occurred and be continuing, any -89- change, event, occurrence, state of facts or development that has had, or would reasonably be expected to have, a Company Material Adverse Effect and (B) the condition set forth in clause (c)(ii) below is satisfied;
(viii) a certificate substantially in the form of Exhibit K attesting to the Solvency of the Borrower and its Subsidiaries (on a consolidated basis) on the Closing Date after giving effect to the Transaction, from the Borrower’s chief financial officer or other officer with equivalent duties; and
(ix) a Committed Loan Notice relating to the Credit Extension to be made on the Closing Date.
(b) All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid hereunder or pursuant to the Fee Letter, to the extent invoiced at least three (3) Business Days prior to the Closing Date (except as otherwise agreed to by the Borrower), in each case, shall have been paid in full in cash or will be paid on the Closing Date.
(c) Prior to or substantially simultaneously with the Closing Date, (i) the Equity Contribution in at least the amount set forth in the definition thereof shall have been consummated and (ii) the Acquisition shall be consummated in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects of any such requests) by the Borrower that are materially adverse to the interests of the Lenders or the Administrative Agent, without the prior consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that any modification, amendment, supplement, consent, waiver or request that results in (a) any decrease in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as such decrease reduced, on a dollar-for-dollar basis, the aggregate amount of the Initial Term Loans, (b) any increase in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as funded with proceeds of common equity or preferred equity that does not constitute Disqualified Equity Interests and (c) any adverse amendment to the definition of “Company Material Adverse Effect” is materially adverse to the interests of the Lenders and Administrative Agent Agent).
(d) The Administrative Agent shall have received (i) the Audited Financial Statements and (ii) the Unaudited Financial Statements.
(e) Prior to or substantially simultaneously with the Closing Date, the Refinancing shall have been consummated.
(f) The Specified Acquisition Agreement Representations shall be true and correct in all material respects on and as of the Closing Date, and the Specified Representations shall be true and correct in all material respects on and as of the Closing Date; provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(g) The Administrative Agent shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors as has been reasonably requested in writing at least five (5) Business Days prior to the Closing Date by the Administrative Agent that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act. For purposes of determining whether the Closing Date has occurred, each Lender that has executed this Agreement shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or such Lender, as the case may be, unless such ▇▇▇▇▇▇ Lender has notified the Administrative Agent of any disagreement prior to the Closing Date.
Appears in 1 contract
Conditions to Closing Date. The obligation of each Lender to make the Initial Term initial Loans and the occurrence of the Closing Date hereunder is subject to satisfaction of the following conditions precedent (or waiver thereof in accordance with Section 10.01):precedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (where applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) counterparts executed counterparts by the Loan Parties of each Loan Document, including, without limitation, this Agreement, each Guaranty, Pledge Agreement and with respect to each Collateral Property the Environmental Indemnity and the Collateral Documents, in each case, sufficient in number for distribution to Administrative Agent, each Lender, and Borrowers;
(ii) a Term Note Notes executed by the Borrower Borrowers in favor of each Lender that has requested requesting a Term Note at least five (5) Business Days in advance of the Closing DateNote;
(iii) fully executed counterparts of the Guaranty from each of the Loan Parties listed on the signature pages theretoOperating Lease Subordination Agreements;
(iv) each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party thereto, together with (except as provided in such Collateral Documents):
(A) certificates, if any, representing the pledged equity referred to therein accompanied by undated stock powers executed in blank and (if applicable) instruments evidencing the pledged debt referred to therein endorsed in blank; and
(B) evidence that all other actions, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent and Collateral Agent; provided that if, notwithstanding the Borrower’s use of commercially reasonable efforts without undue burden or expense to cause this clause (iv) to be satisfied on the Closing Date, the requirements hereof (other than (a) the execution of each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule by each Loan Party thereto, (b) the pledge and perfection of security interests in the certificated Equity Interests (to the extent possession of such certificates perfects a security interest therein) of each direct Subsidiary of the Borrower that is a Material Subsidiary that constitutes a Domestic Subsidiary (provided that such Equity Interests are not Excluded Equity) and (c) delivery of Uniform Commercial Code financing statements (other than fixture filings on real estate) with respect to perfection of security interests in the assets of the Loan Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code) are not satisfied as of the Closing Date, the satisfaction of such requirements shall not be a condition to the making of the Initial Term Loans to the Borrower on the Closing Date (but shall be required to be satisfied as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.12) (which shall be no earlier than 60 days after the Closing Date);
(v) a certificate of each Loan Party, certified by a secretary or other Responsible Officer (1) copies of Organization Documents of the Loan Parties (including any by-laws or other applicable operating agreement of the Loan Parties), (2) resolutions or other action, (3) good standing incumbency certificates, and (4) incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority authority, and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party party;
(v) copies of the Organizational Documents of each Loan Party, together with such other documents and certifications as Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing, and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to be so qualified could not reasonably be expected to have a party on the Closing DateMaterial Adverse Effect;
(vi) an a favorable opinion of ▇▇▇▇▇▇▇ LLP, one or more firms counsel to the Loan Parties, addressed to Administrative Agent and each Lender, including (x) Akin, Gump, Strauss, H▇▇▇▇ & F▇▇▇, L.L.P. and (y) such local counsel opinions for each jurisdiction in which the Collateral Properties are located, in each case as to such matters concerning the Loan Parties and the Loan Documents as Administrative Agent may reasonably request, including existence, power and authority; enforceability; non-contravention; no consent; and perfection;
(vii) a certificate signed by of a Responsible Officer of the Borrower certifying that each Loan Party (other than Borrowers) either (A) since March 12attaching copies of all consents, 2021licenses, there and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses, and approvals shall not have occurred be in full force and be continuing, any -89- change, event, occurrence, state of facts or development that has hadeffect, or would reasonably be expected to have, a Company Material Adverse Effect and (B) the condition set forth in clause (c)(ii) below is satisfiedstating that no such consents, licenses, or approvals are so required;
(viii) a certificate substantially completed and executed Officer's Certificate (A) providing calculations of (x) the Loan to Value Ratio, (y) the Debt Service Coverage Ratio and (z) pro forma compliance with the restrictions on indebtedness set forth in the form of Exhibit K attesting to the Solvency Section 4.03 of the Borrower and its Subsidiaries (on a consolidated basis) on the Closing Date Senior Secured Notes Indenture; in each case, after giving effect to the TransactionAggregate Commitments and the Borrowings on the Closing Date; which calculations shall show a Loan to Value Ratio of not more than sixty two and three quarters percent (62.75%) and a pro forma Debt Service Coverage Ratio as of December 31, from 2010 of at least 1.30 to 1.00, (B) providing calculations showing that no Collateral Property comprises more than twenty percent (20%) of the Borrower’s chief financial officer or other officer with equivalent duties; andaggregate Net Operating Income of all the Collateral Properties as of the Closing Date, except for the Mandalay Beach Property, the Net Operating Income of which does not comprise more than twenty five percent (25%) of the aggregate Net Operating Income of all the Collateral Properties as of the Closing Date, and (C) attaching the Annual Budget for 2011 for each of the Collateral Properties;
(ix) a Committed Loan Notice relating to the Credit Extension to be made on the Closing Date.
(b) All fees evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) unless otherwise agreed or approved by Administrative Agent, (A) two (2) prints of an original ALTA survey (a “Survey”) of each Collateral Property and improvements thereon dated not more than sixty (60) days prior to the date of this Agreement (or dated such earlier date, if any, as is satisfactory to Administrative Agent and the Title Company, but in any event not more than one hundred eighty (180) days prior to the date of this Agreement) and otherwise complying with Exhibit H to the extent required by Administrative Agent and the Title Company; and (B) a Flood Insurance Policy for each Collateral Property in an amount required by Administrative Agent, but in no event less than the amount sufficient to meet the requirements of applicable law and the Flood Insurance Acts, or evidence satisfactory to Administrative Agent that none of such Collateral Property is located within a one hundred year flood plain or in a flood hazard area as defined by the Federal Insurance Administration and appropriate flood certificates acceptable to Administrative Agent;
(xi) unless otherwise agreed or approved by Administrative Agent, true and correct copies of all existing plans with respect to the Collateral Properties within the possession or control of any of the Loan Parties (including the site plan) requested by Administrative Agent, together with evidence satisfactory to Administrative Agent that the same comply in all material respects to applicable requirements of Governmental Authorities;
(xii) with respect to each Collateral Property: (A) true and correct copies of each Major Lease, as well as the Operating Leases, any Ground Lease, and (if applicable) Guarantees thereof; (B) estoppel certificates and subordination and attornment agreements (including nondisturbance agreements if and to the extent agreed by Administrative Agent in its discretion), dated within thirty (30) days prior to this Agreement and in form and content satisfactory to Administrative Agent, from the tenants and subtenants as Administrative Agent requires; (C) estoppel and consent agreements from each of the Ground Lessors, dated within thirty (30) days prior to this Agreement and in form and content reasonably satisfactory to Administrative Agent; (D) copies of all personal property leases under which (1) payments by Borrowers exceed $50,000 in any year, and/or (2) the term exceeds one year; (E) copies of all operating and service agreements under which (1) payments by Borrowers exceed $50,000 in any year, and/or (2) the term exceeds one year, and if reasonably requested by Administrative Agent estoppel and recognition agreements relating thereto and (F) evidence of the applicable Borrower's or the applicable Loan Party's compliance with each Major Lease delivered pursuant to clause (A) above;
(xiii) evidence satisfactory to Administrative Agent that no portion of any Collateral Property is “wetlands” under any applicable Law and no Collateral Property contains nor is within or near any area designated as a hazardous waste site by any Governmental Authority, that no Collateral Property or any adjoining property contains or has ever contained any Hazardous Material under any Law pertaining to health or the environment, and that no Collateral Property or any use or activity thereon violates or is or could be subject to any response, remediation, clean-up, or other obligation under any Law pertaining to health or the environment including without limitation, a written report of an environmental assessment (including soil assessments) of each Collateral Property, made within thirty (30) days prior to the date of this Agreement (other than for the Boca Raton Property and D▇▇▇ Point Property, which reports were obtained in connection with the 2010 Term Loan) (in each case, an “Environmental Report”), by an engineering firm, and of a scope and in form and content satisfactory to Administrative Agent, complying with Administrative Agent's established guidelines, showing that there is no evidence of any Hazardous Material which has been generated, treated, stored, released, or disposed of in any Collateral Property, and such additional evidence as may be required by Administrative Agent. All reports, drafts of reports, and recommendations, whether written or oral, from such engineering firm shall be made available and communicated to Administrative Agent;
(A) evidence that each Collateral Property abuts and has fully adequate direct and free access to one or more public streets, dedicated to public use, fully installed and accepted by the appropriate Governmental Authority, that all fees, costs and expenses of the installation and acceptance thereof have been paid in full, and that there are no restrictions on the use and enjoyment of such streets which would adversely affect such Collateral Property; (B) evidence that each Collateral Property shall have access to utilities; (C) evidence that all applicable zoning ordinances, restrictive covenants, and Laws affecting each Collateral Property permit the use for which such Collateral Property is intended and have been or will be complied with without the existence of any variance, non-complying use, nonconforming use or other special exception; (D) evidence that each Collateral Property and Improvements comply and will comply with all Laws regarding subdivision and platting and would so comply if such Collateral Property and the Improvements thereon were conveyed as a separate parcel; and (E) evidence of compliance by Borrowers and each Collateral Property, and any proposed construction, use and occupancy of the Improvements, with such other applicable Laws as Administrative Agent may request, including all Laws regarding access and facilities for handicapped or disabled persons including, without limitation and to the extent applicable, The Federal Architectural Barriers Act (42 U.S .C. § 4151 et seq.), The Fair Housing Amendments Act of 1988 (42 U.S.C. § 3601 et seq.), The Americans With Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), The Rehabilitation Act of 1973 (29 U.S.C. § 794), and any applicable state requirements, with such exceptions therefrom as previously disclosed in writing and accepted by Administrative Agent;
(xv) evidence (A) of the identity of all taxing authorities and utility districts (or similar authorities) currently exercising ad valorem or real property taxing or assessment jurisdiction over any Collateral Property or any portion thereof; (B) that all taxes, standby fees and any other similar charges have been paid, including copies of receipts or statements marked “paid” by the appropriate authority; and (C) that each Collateral Property is a separate tax lot or lots with separate assessment or assessments of the Collateral Property and Improvements, independent of any other Collateral Property or improvements and that each Collateral Property is a separate legally subdivided parcel;
(xvi) (A) executed, acknowledged, and/or sworn to as required counterparts of the Mortgages for each Collateral Property, which shall have been delivered to the Title Company and released for recordation in the official records of the city or county in which each Collateral Property is located, and (B) UCC-1 financing statements which shall have been furnished for filing in all filing offices that Administrative Agent may require;
(xvii) a Title Policy or a Title Policy Commitment (or a Title Policy promulgated by the Laws of the state in which each respective Collateral Property is located if an ALTA insurance policy is not available). No Borrower and none of Borrowers' counsel shall have any interest, direct or indirect, in the Title Company (or its agent) or any portion of the premium paid for the Title Insurance;
(xviii) (A) evidence that immediately prior to the Closing Date pursuant and as of the time the Mortgages will be filed for record, except for Permitted Liens: (1) no contract, or memorandum thereof, for construction, design, surveying, or any other service relating to any Collateral Property has been filed for record in the Fee Letter county where such Collateral Property is located; and reasonable out(2) no mechanic's or materialman's Lien claim or notice, lis pendens, judgment, or other claim or encumbrance against such Collateral Property has been filed for record in the county where the Collateral Property is located or in any other public record which by Law provides notice of claims or encumbrances regarding such Collateral Property; (B) a certificate or certificates of a reporting service acceptable to Administrative Agent, reflecting the results of searches of each of the Loan Parties made within forty-of-pocket expenses required to be paid hereunder or pursuant to the Fee Letter, to the extent invoiced at least three five (345) Business Days days prior to the Closing Date (except in the case of searches of FelCor Op or FelCor Trust, which shall have been made within sixty (60) days prior to the Closing Date), (1) of the central and local Uniform Commercial Code records, showing no filings against any of the collateral for the Obligations or against Borrowers otherwise except as otherwise agreed consented to by Administrative Agent; and (2) of the Borrowerappropriate judgment and tax Lien records, showing no outstanding judgment or tax Lien against Borrowers;
(xix) to the extent reasonably deemed necessary by Administrative Agent, an executed REA estoppel letter from each party to any REA for any applicable Collateral Property;
(xx) a true and correct copy of (A) each Franchise Agreement and fully executed “comfort letter” for each such Franchise Agreement in form and substance satisfactory to Administrative Agent, (B) each Management Agreement for each Collateral Property, together with a fully executed Manager's Consent and Subordination of Management Agreement relating to each such Management Agreement (other than the Myrtle Beach Golf Course Management Agreement), ; in each case, which includes an agreement to attorn to Administrative Agent in the event Administrative Agent takes possession of any Collateral Property by foreclosure, deed in lieu of foreclosure or otherwise and (C) all Licenses relating to the Collateral Properties, provided that Borrowers obligations to deliver copies of such Licenses prior to the Closing Date shall have been paid be limited to an obligation to use commercially reasonable efforts to do so;
(xxi) a Physical Condition Report for each Collateral Property (other than for the Boca Raton Property and D▇▇▇ Point Property, which reports were obtained in full in cash connection with the 2010 Term Loan);
(xxii) an earthquake or will be paid seismic condition report for each of the D▇▇▇ Point Property, the Santa B▇▇▇▇▇▇ Property, the Santa M▇▇▇▇▇ Property and the Mandalay Beach Property;
(xxiii) Unaudited Financial Statements of each Borrower;
(xxiv) Acceptable Appraisals of each Collateral Property, which collectively show: (A) a Loan to Value Ratio for all of the Collateral Properties, of no more than sixty two and one half percent (62.5%) after giving effect to the Aggregate Commitments on the Closing Date.
; (cB) Prior to or substantially simultaneously with the Closing Date, no Collateral Property comprises more than twenty percent (i20%) the Equity Contribution in at least the amount set forth in the definition thereof shall have been consummated and (ii) the Acquisition shall be consummated in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents, waivers or requests (including aggregate Net Operating Income of all the effects of any such requests) by the Borrower that are materially adverse to the interests of the Lenders or the Administrative Agent, without the prior consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that any modification, amendment, supplement, consent, waiver or request that results in (a) any decrease in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as such decrease reduced, on a dollar-for-dollar basis, the aggregate amount of the Initial Term Loans, (b) any increase in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as funded with proceeds of common equity or preferred equity that does not constitute Disqualified Equity Interests and (c) any adverse amendment to the definition of “Company Material Adverse Effect” is materially adverse to the interests of the Lenders and Administrative Agent ).
(d) The Administrative Agent shall have received (i) the Audited Financial Statements and (ii) the Unaudited Financial Statements.
(e) Prior to or substantially simultaneously with the Closing Date, the Refinancing shall have been consummated.
(f) The Specified Acquisition Agreement Representations shall be true and correct in all material respects on and Collateral Properties as of the Closing Date, and except for the Specified Representations shall be true and correct in Mandalay Beach Property, the Net Operating Income of which does not comprise more than twenty five percent (25%) of the aggregate Net Operating Income of all material respects on and the Collateral Properties as of the Closing Date; provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.;
(gxxv) The Administrative Agent shall have received at least three (3) Business Days prior to such payoff letters in respect of the repayment of any Indebtedness outstanding on the Closing Date all documentation and other information about not permitted pursuant to Section 8.01, including the Borrower 2009 Term Loan and the Guarantors as has been reasonably requested in writing at least five (5) Business Days prior to 2010 Term Loan, and evidence of releases of Liens outstanding on the Closing Date by the Administrative Agent that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsnot permitted pursuant to Section 8.03, including without limitation those Liens securing the USA PATRIOT Act. For purposes 2009 Term Loan and the 2010 Term Loan;
(xxvi) Administrative Agent's Disbursement and Rate Management Signature Authorization and Instruction Form;
(xxvii) a Certification of determining whether the Closing Date has occurredNon-Foreign Status for each Borrower; and
(xxviii) such other assurances, each Lender that has executed this Agreement shall be deemed to have consented tocertificates, approved or accepteddocuments, consents, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the opinions as Administrative Agent or such Lender, as the case may be, unless such ▇▇▇▇▇▇ has notified the Administrative Agent of any disagreement prior to the Closing Date.Agent
Appears in 1 contract
Sources: Revolving Credit Agreement (FelCor Lodging Trust Inc)
Conditions to Closing Date. The obligation of each Lender to make the Initial Term Loans its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent (or waiver thereof in accordance with Section 10.01):
(a) The Administrative Agent’s (or, subject to the terms of the ABL Intercreditor Agreement or the Term Intercreditor Agreement, as applicable, the ABL Administrative Agent’s or the Administrative Agent’s (as defined in the First Lien Credit Agreement)) receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (other than in respect of (a)(i)(v) below), each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this AgreementAgreement and the Guaranty from each of the Loan Parties listed on the signature pages thereto;
(ii) a Term Note executed by the Borrower in favor of each Lender that has requested a Term Note at least five (5) Business Days in advance of the Closing Date;
(iii) executed counterparts of the Guaranty from each of the Loan Parties listed on the signature pages thereto;
(iv) each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party party thereto, together with (except as provided in such Collateral Documents):);
(A) certificates, if any, representing the pledged equity referred to therein therein, accompanied by undated stock powers executed in blank and (if applicable) instruments evidencing the pledged debt referred to therein endorsed in blank; and;
(B) evidence that all other actions, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent and Collateral Agent; provided and
(C) certified copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that if, notwithstanding name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that are required by the Borrower’s use of commercially reasonable efforts without undue burden Security Agreement or expense to cause this clause that the Administrative Agent deems necessary or appropriate;
(iv) to be satisfied on the Closing Datesuch certificates, the requirements hereof (other than (a) the execution of each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule by each Loan Party thereto, (b) the pledge and perfection of security interests in the certificated Equity Interests (to the extent possession of such certificates perfects a security interest therein) of each direct Subsidiary of the Borrower that is a Material Subsidiary that constitutes a Domestic Subsidiary (provided that such Equity Interests are not Excluded Equity) and (c) delivery of Uniform Commercial Code financing statements (other than fixture filings on real estate) with respect to perfection of security interests in the assets of the Loan Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code) are not satisfied as of the Closing Date, the satisfaction of such requirements shall not be a condition to the making of the Initial Term Loans to the Borrower on the Closing Date (but shall be required to be satisfied as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.12) (which shall be no earlier than 60 days after the Closing Date);
(v) a certificate of each Loan Party, certified by a secretary or other Responsible Officer (1) copies of Organization Documents of the Loan Parties (including any by-laws or other applicable operating agreement of the Loan Parties), (2) resolutions or other action, (3) good standing certificates, action and (4) incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Closing Date;
(viv) an opinion of from (i) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Loan Parties and (ii) Cozen ▇’▇▇▇▇▇▇, Pennsylvania counsel to the Loan Parties;; and
(viivi) a certificate signed by a Responsible Officer of the Borrower certifying that (A) since March 12, 2021, there shall not have occurred and be continuing, any -89- change, event, occurrence, state of facts or development that has had, or would reasonably be expected to have, a Company Material Adverse Effect and (B) the condition set forth in clause (c)(ii) below is satisfied;
(viii) a certificate substantially in the form of Exhibit K attesting to the Solvency of the Parents, the Borrower and its the Restricted Subsidiaries (on a consolidated Consolidated basis) on the Closing Date after giving effect to the Transaction, from the Borrower’s chief financial officer or other officer with equivalent duties; and
(ix) a Committed Loan Notice relating to the Credit Extension to be made on the Closing Date.
(b) All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid hereunder or pursuant to the Agent Fee Letter and Engagement Letter, to the extent invoiced at least three (3) Business Days prior to the Closing Date (except as otherwise agreed to by the Borrower), in each case, shall have been paid in full in cash or will be paid on the Closing Date.
(c) Prior to or substantially simultaneously with the Closing Date, (i) the Equity Contribution in at least the amount set forth in the definition thereof shall have been consummated and (ii) the Acquisition shall be consummated in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects of any such requests) by the Borrower that are materially adverse to the interests of the Lenders or the Administrative Agent, without the prior consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that any modification, amendment, supplement, consent, waiver or request that results in (a) any decrease in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as such decrease reduced, on a dollar-for-dollar basis, the aggregate amount of the Initial Term Loans, (b) any increase in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as funded with proceeds of common equity or preferred equity that does not constitute Disqualified Equity Interests and (c) any adverse amendment to the definition of “Company Material Adverse Effect” is materially adverse to the interests of the Lenders and Administrative Agent ).
(d) The Administrative Agent Lead Arrangers shall have received (i) the Audited Financial Statements and (ii) the Unaudited Financial Statements.
(ed) Prior to or substantially simultaneously with the Closing Date, the Refinancing shall have been consummated.
(f) The Specified Acquisition Agreement Representations shall be true and correct in all material respects on and as of the Closing Date, and the Specified Representations shall be true and correct in all material respects on and as of the Closing Date; provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(ge) The Administrative Agent and the Lead Arrangers shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors as has been reasonably requested in writing at least five ten (510) Business Days prior to the Closing Date by the Administrative Agent and the Lead Arrangers that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
(f) The Term Intercreditor Agreement and the ABL Intercreditor Agreement shall have been duly executed and delivered by each Loan Party thereto.
(g) Evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or loss payee, as the case may be, under all casualty insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral. For purposes of determining whether the Closing Date has occurred, each Lender that has executed this Agreement shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or such Lender, as the case may be, unless such ▇▇▇▇▇▇ Lender has notified the Administrative Agent of any disagreement prior to the Closing Date.
Appears in 1 contract
Sources: Second Lien Term Loan Credit Agreement (Utz Quality Foods, LLC)
Conditions to Closing Date. The obligation of each Lender to make Each Lender’s respective Commitments hereunder shall become effective, on the Initial Term Loans is terms and subject to the other conditions set forth herein, upon the satisfaction of the following conditions precedent (or waiver thereof (in accordance with Section 10.01):) of the following conditions precedent:
(a) The Administrative Agent’s receipt Agent shall have received all of the following, each of which shall be originals or facsimiles or “.pdf” files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, if applicable, each dated as of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Date), each in form and substance reasonably satisfactory to the Administrative Agent Agent, and each accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to the Borrower and its legal counsel:Subsidiaries, giving effect to the Transactions):
(i) executed counterparts of (A) this Agreement;
Agreement from the Borrower, (iiB) a Term Note executed by the Borrower in favor of each Lender that has requested a Term Note at least five (5) Business Days in advance of the Closing Date;
(iii) executed counterparts of the Guaranty from each of Guarantor, (C) the Security Agreement from the Borrower and each Guarantor and (D) the ABL/Term Loan Parties listed on Intercreditor Agreement acknowledged by the signature pages thereto;
(iv) Borrower and each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party thereto, Guarantor; together with (except as provided in such Collateral Documentssubject to the last paragraph of this Section 4.01):
(A) certificatescopies of proper financing statements, if anyfiled or duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens on assets of the Borrower and the Guarantors created under the Security Agreement and the Pledge Agreement (to the extent and with the priority contemplated therein and in the ABL/Term Loan Intercreditor Agreement), representing covering the pledged equity referred to therein accompanied by undated stock powers executed Collateral described in blank and (if the Security Agreement or the Pledge Agreement, as applicable) instruments evidencing the pledged debt referred to therein endorsed in blank; and,
(B) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent or Collateral Agent may deem reasonably necessary or desirable in order to satisfy perfect and protect the Collateral Liens created thereby (to the extent and Guarantee Requirement with the priority contemplated therein and in the ABL/Term Loan Intercreditor Agreement) shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (including receipt of releases under the guaranty agreement, pledge agreement and Collateral Agent; provided that ifsecurity agreement, notwithstanding the Borrower’s use of commercially reasonable efforts without undue burden or expense to cause this clause (iv) to be satisfied on the Closing Date, the requirements hereof (other than (a) the execution of in each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule by each Loan Party thereto, (b) the pledge and perfection of security interests in the certificated Equity Interests (to the extent possession of such certificates perfects a security interest therein) of each direct Subsidiary of the Borrower that is a Material Subsidiary that constitutes a Domestic Subsidiary (provided that such Equity Interests are not Excluded Equity) and (c) delivery of Uniform Commercial Code financing statements (other than fixture filings on real estate) case with respect to perfection the Tribune Credit Agreement, customary lien searches and UCC-3 termination statements), and
(C) the Pledge Agreement, duly executed by the Borrower and the Guarantors party thereto, together with (subject to the last paragraph of security interests this Section 4.01) certificates, if any, representing the Pledged Shares referred to therein accompanied by undated stock powers executed in blank,
(ii) such customary certificates of resolutions or other action authorizing the assets execution, delivery and performance of the Loan Parties that may be perfected by Documents to which such Person is a party and, in the filing of a financing statement under the Uniform Commercial Code) are not satisfied as case of the Closing DateBorrower, the satisfaction of such requirements shall not be a condition to the making of the Initial Term Loans to the Borrower on the Closing Date (but shall be required to be satisfied as promptly as practicable after the Closing Date borrowings and in any event within the period specified therefor in Schedule 6.12) (which shall be no earlier than 60 days after the Closing Date);
(v) a certificate of each Loan Partyother transactions hereunder, certified by a secretary or other Responsible Officer (1) copies of Organization Documents of the Loan Parties (including any by-laws or other applicable operating agreement of the Loan Parties), (2) resolutions or other action, (3) good standing certificates, and (4) incumbency certificates and/or other certificates of Responsible Officers of the Borrower and each Loan Party Guarantor as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party each of the Borrower and the Guarantors is a party or is to be a party on party;
(iii) such documents and certifications (including Organization Documents and, if applicable, good standing certificates) as the Closing DateAdministrative Agent may reasonably require to evidence that the Borrower and each Guarantor is duly organized or formed, and that each of them is validly existing and in good standing, except, other than with respect to the Borrower, to the extent that failure to be in good standing could not reasonably be expected to have a Material Adverse Effect;
(iv) [Reserved];
(v) a solvency certificate from a Responsible Officer of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit I;
(vi) an opinion of Debevoise & ▇▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties;, addressed to each Lender, in form and substance reasonably satisfactory to the Administrative Agent; and
(vii) a certificate signed by a Responsible Officer opinions of local counsel for the Borrower certifying that (ALoan Parties listed on Schedule 4.01(a) since March 12hereto, 2021, there shall not have occurred in form and be continuing, any -89- change, event, occurrence, state of facts or development that has had, or would substance reasonably be expected to have, a Company Material Adverse Effect and (B) the condition set forth in clause (c)(ii) below is satisfied;
(viii) a certificate substantially in the form of Exhibit K attesting satisfactory to the Solvency of the Borrower and its Subsidiaries (on a consolidated basis) on the Closing Date after giving effect to the Transaction, from the Borrower’s chief financial officer or other officer with equivalent duties; and
(ix) a Committed Loan Notice relating to the Credit Extension to be made on the Closing DateAdministrative Agent.
(b) All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid hereunder or pursuant to the Fee Letter, to the extent invoiced at least three (3) Business Days prior to the Closing Date (except as otherwise agreed to by the Borrower), in each case, shall have been paid in full in cash or will be paid on the Closing Date[Reserved].
(c) Prior to or substantially simultaneously with the Closing Date, (i) the Equity Contribution in at least the amount set forth in the definition thereof The Borrower and each Guarantor shall have been consummated and (ii) provided the Acquisition shall be consummated in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects of any such requests) by the Borrower that are materially adverse to the interests of the Lenders or the Administrative Agent, without the prior consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that any modification, amendment, supplement, consent, waiver or request that results in (a) any decrease in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as such decrease reduced, on a dollar-for-dollar basis, the aggregate amount of the Initial Term Loans, (b) any increase in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as funded with proceeds of common equity or preferred equity that does not constitute Disqualified Equity Interests and (c) any adverse amendment to the definition of “Company Material Adverse Effect” is materially adverse to the interests of the Lenders and Administrative Agent ).
(d) The Administrative Agent shall have received (i) the Audited Financial Statements and (ii) the Unaudited Financial Statements.
(e) Prior to or substantially simultaneously with the Closing Date, the Refinancing shall have been consummated.
(f) The Specified Acquisition Agreement Representations shall be true and correct in all material respects on and as of the Closing Date, and the Specified Representations shall be true and correct in all material respects on and as of the Closing Date; provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(g) The Administrative Agent shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors as has been reasonably requested in writing at least five ten (510) Business Days days prior to the Closing Date by the Administrative Agent Lenders that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money money-laundering rules and regulations, including without limitation the USA PATRIOT Act, in each case at least three Business Days prior to the Closing Date (or such shorter period as the Administrative Agent shall otherwise agree).
(d) All actions necessary to establish that the Collateral Agent will have a perfected security interest (to the extent contemplated in the Collateral Documents and with the priority contemplated therein and in the ABL/Term Loan Intercreditor Agreement and subject to no Liens other than the Liens permitted under Section 7.01) in the Collateral shall have been taken, in each case, to the extent such Collateral (including the creation or perfection of any security interest) is required to be provided on the Closing Date pursuant to the last paragraph of this Section 4.01.
(e) The Separation and Distribution shall have been consummated, or substantially simultaneously with the initial borrowing under the Term Facility, shall be consummated, in all material respects in accordance with the terms of the Separation and Distribution Agreement.
(f) [Reserved].
(g) [Reserved].
(h) [Reserved].
(i) All fees required to be paid on the Closing Date pursuant to the Fee Letters and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to the Engagement Letter, to the extent invoiced in reasonable detail at least three Business Days prior to the Closing Date (or such later date as the Borrower may reasonably agree) shall, upon the initial borrowing under the Facility, have been paid (which amounts may be offset against the proceeds of the Facility).
(j) The Arrangers shall have received (a) audited combined balance sheets of the Borrower and related statements of income, stockholders’ equity and cash flows of the Borrower for the three (3) most recently completed Fiscal Years ended at least 120 days before the Closing Date and (b) unaudited combined balance sheets and related statements of income and cash flows of the Borrower, for each subsequent fiscal quarter after the most recent completed fiscal year for which financials have been delivered pursuant to clause (a) above ended at least 60 days before the Closing Date (other than any fiscal fourth quarter) (the “Borrower Quarterly Financial Statements”). For Without limiting the generality of the provisions of Section 9.03, for purposes of determining whether compliance with the conditions specified in this Section 4.01, each Lender as of the Closing Date has occurred, each Lender that has executed this Agreement shall be deemed to have consented to, approved or accepted, accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent or shall have received written notice from such Lender, as the case may be, unless such ▇▇▇▇▇▇ has notified the Administrative Agent of any disagreement Lender prior to the Closing DateDate specifying its objection thereto.
Appears in 1 contract
Conditions to Closing Date. The obligation of each Lender to make its initial Credit Extension hereunder on the Initial Term Loans Closing Date is subject to satisfaction of the following conditions precedent (or waiver thereof in accordance with Section 10.01):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (other than in respect of (a)(i)(v) below), each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this AgreementAgreement and the Guaranty from each of the Loan Parties listed on the signature pages thereto;
(ii) a Term Note executed by the Borrower in favor of each Lender that has requested a Term Note at least five (5) Business Days in advance of the Closing Date;
(iii) executed counterparts of the Guaranty from each of the Loan Parties listed on the signature pages thereto;
(iv) each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party party thereto, together with (except as provided in such Collateral Documents):);
(A) certificates, if any, representing the pledged equity referred to therein therein, accompanied by undated stock powers executed in blank and (if applicable) instruments evidencing the pledged debt referred to therein endorsed in blank; and;
(B) evidence that all other actions, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent and Collateral Agent; provided and
(C) certified copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that if, notwithstanding name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that are required by the Borrower’s use of commercially reasonable efforts without undue burden Security Agreement or expense to cause this clause that the Administrative Agent deems necessary or appropriate;
(iv) to be satisfied on the Closing Datesuch certificates, the requirements hereof (other than (a) the execution of each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule by each Loan Party thereto, (b) the pledge and perfection of security interests in the certificated Equity Interests (to the extent possession of such certificates perfects a security interest therein) of each direct Subsidiary of the Borrower that is a Material Subsidiary that constitutes a Domestic Subsidiary (provided that such Equity Interests are not Excluded Equity) and (c) delivery of Uniform Commercial Code financing statements (other than fixture filings on real estate) with respect to perfection of security interests in the assets of the Loan Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code) are not satisfied as of the Closing Date, the satisfaction of such requirements shall not be a condition to the making of the Initial Term Loans to the Borrower on the Closing Date (but shall be required to be satisfied as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.12) (which shall be no earlier than 60 days after the Closing Date);
(v) a certificate of each Loan Party, certified by a secretary or other Responsible Officer (1) copies of Organization Documents of the Loan Parties (including any by-laws or other applicable operating agreement of the Loan Parties), (2) resolutions or other action, (3) good standing certificates, action and (4) incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Closing Date;
(viv) an opinion of from (i) K▇▇▇▇▇▇▇ & E▇▇▇▇ LLP, counsel to the Loan Parties and (ii) Cozen O’▇▇▇▇▇▇, Pennsylvania counsel to the Loan Parties;; and
(viivi) a certificate signed by a Responsible Officer of the Borrower certifying that (A) since March 12, 2021, there shall not have occurred and be continuing, any -89- change, event, occurrence, state of facts or development that has had, or would reasonably be expected to have, a Company Material Adverse Effect and (B) the condition set forth in clause (c)(ii) below is satisfied;
(viii) a certificate substantially in the form of Exhibit K attesting to the Solvency of the Parents, the Borrower and its the Restricted Subsidiaries (on a consolidated Consolidated basis) on the Closing Date after giving effect to the Transaction, from the Borrower’s chief financial officer or other officer with equivalent duties; and
(ix) a Committed Loan Notice relating to the Credit Extension to be made on the Closing Date.
(b) All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid hereunder or pursuant to the Agent Fee Letter and Engagement Letter, to the extent invoiced at least three (3) Business Days prior to the Closing Date (except as otherwise agreed to by the Borrower), in each case, shall have been paid in full in cash or will be paid on the Closing Date.
(c) Prior to or substantially simultaneously with the Closing Date, (i) the Equity Contribution in at least the amount set forth in the definition thereof shall have been consummated and (ii) the Acquisition shall be consummated in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects of any such requests) by the Borrower that are materially adverse to the interests of the Lenders or the Administrative Agent, without the prior consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that any modification, amendment, supplement, consent, waiver or request that results in (a) any decrease in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as such decrease reduced, on a dollar-for-dollar basis, the aggregate amount of the Initial Term Loans, (b) any increase in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as funded with proceeds of common equity or preferred equity that does not constitute Disqualified Equity Interests and (c) any adverse amendment to the definition of “Company Material Adverse Effect” is materially adverse to the interests of the Lenders and Administrative Agent ).
(d) The Administrative Agent Lead Arrangers shall have received (i) the Audited Financial Statements and (ii) the Unaudited Financial Statements.
(ed) Prior to or substantially simultaneously with the Closing Date, the Refinancing shall have been consummated.
(f) The Specified Acquisition Agreement Representations shall be true and correct in all material respects on and as of the Closing Date, and the Specified Representations shall be true and correct in all material respects on and as of the Closing Date; provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(ge) The Administrative Agent and the Lead Arrangers shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors as has been reasonably requested in writing at least five ten (510) Business Days prior to the Closing Date by the Administrative Agent and the Lead Arrangers that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
(f) The Term Intercreditor Agreement and the ABL Intercreditor Agreement shall have been duly executed and delivered by each Loan Party thereto.
(g) Evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or loss payee, as the case may be, under all casualty insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral. For purposes of determining whether the Closing Date has occurred, each Lender that has executed this Agreement shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or such Lender, as the case may be, unless such ▇▇▇▇▇▇ Lender has notified the Administrative Agent of any disagreement prior to the Closing Date.
Appears in 1 contract
Sources: Credit Agreement (Utz Brands, Inc.)
Conditions to Closing Date. The obligation of each Lender to make the Initial Term Loans is subject to satisfaction Lenders’ Commitments shall not become effective hereunder unless all of the following conditions precedent have been satisfied (or waiver thereof waived in accordance with Section 10.01):
(a) The Unless waived by all the Lenders (or by the Administrative Agent), the Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyCompany (where applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its legal counselAgent:
(i) executed counterparts of this Agreement, signed on behalf of each party hereto or written evidence (which may include electronic transmission of a signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement;
(ii) a Term Note executed by the Borrower in favor of each Lender that has requested a Term Note at least five (5) Business Days in advance counterparts of the Closing DateGuarantee, signed by Exelis or written evidence (which may include electronic transmission of a signed signature page of this Agreement) that Exelis has signed the Guarantee;
(iii) executed counterparts of the Guaranty from each of the Loan Parties listed on the signature pages thereto;
(iv) each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party thereto, together with (except as provided in such Collateral Documents):
(A) certificates, if any, representing the pledged equity referred to therein accompanied by undated stock powers executed in blank and (if applicable) instruments evidencing the pledged debt referred to therein endorsed in blank; and
(B) evidence that all other actions, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent and Collateral Agent; provided that if, notwithstanding the Borrower’s use of commercially reasonable efforts without undue burden or expense to cause this clause (iv) to be satisfied on the Closing Date, the requirements hereof (other than (a) the execution of each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule by each Loan Party thereto, (b) the pledge and perfection of security interests in the certificated Equity Interests (to the extent possession of such certificates perfects a security interest therein) of each direct Subsidiary of the Borrower that is a Material Subsidiary that constitutes a Domestic Subsidiary (provided that such Equity Interests are not Excluded Equity) and (c) delivery of Uniform Commercial Code financing statements (other than fixture filings on real estate) with respect to perfection of security interests in the assets of the Loan Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code) are not satisfied as of the Closing Date, the satisfaction of such requirements shall not be a condition to the making of the Initial Term Loans to the Borrower on the Closing Date (but shall be required to be satisfied as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.12) (which shall be no earlier than 60 days after the Closing Date);
(v) a certificate of each Loan Party, certified by a secretary or other Responsible Officer (1) copies of Organization Documents of the Loan Parties (including any by-laws or other applicable operating agreement of the Loan Parties), (2) resolutions or other actionaction of the Board of Directors of each Borrower and Guarantor, (3) good standing certificates, and (4) incumbency certificates and/or other certificates of Responsible Officers the Secretary or Assistant Secretary of each Loan Party as Borrower and Guarantor establishing the Administrative Agent may reasonably require evidencing identities of and verifying the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party Borrower or Guarantor is a party or is to be a party on the Closing Dateparty;
(viiv) an opinion evidence verifying that each Borrower and Guarantor is duly organized or formed, validly existing, in good standing and qualified to engage in business in the jurisdiction of ▇▇▇▇▇▇▇ LLP, counsel to the Loan Partiesits incorporation;
(viiv) a certificate signed by a Responsible Officer of the each Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements which has had or could reasonably be expected to have a Material Adverse Effect; and (C) the current Senior Debt Ratings;
(vi) an opinion of counsel to the Borrowers, addressed to the Administrative Agent, SunTrust Bank as L/C Issuer and each of the Lenders, and covering such matters relating to the Borrowers, the Loan Documents and the transactions contemplated therein as the Administrative Agent shall reasonably request;
(vii) evidence that (A) since March 12the Company has delivered notice of its termination of commitments under the Existing Credit Agreement to the administrative agent three Business Days prior to the Closing Date, 2021, there shall not have occurred and be continuing, any -89- change, event, occurrence, state of facts or development that has had, or would reasonably be expected to have, a Company Material Adverse Effect and (B) that all amounts outstanding under the condition set forth in clause Existing Credit Agreement have been paid (c)(iiincluding, without limitation, principal, interest and fees), provided that all such amounts may be repaid substantially simultaneously with Loan(s) below is satisfiedadvanced under this Agreement, and (C) that the “commitments” of the lenders under the Existing Credit Agreement have been or concurrently with the Closing Date are being terminated;
(viii) a certificate substantially in the form of Exhibit K attesting to the Solvency of the Borrower and its Subsidiaries (on a consolidated basis) on the Closing Date after giving effect to the Transaction, from the Borrower’s chief financial officer or other officer with equivalent duties; and
(ix) a Committed Loan Notice relating to the duly executed Request for Credit Extension for any Credit Extension to be made on the Closing Date;
(ix) a duly executed funds disbursement agreement, if applicable; and
(x) such other certificates, documents or consents as the Administrative Agent or SunTrust Bank as L/C Issuer reasonably require.
(b) All Any fees required to be paid on or before the Closing Date pursuant to in connection herewith shall have been paid.
(c) Unless waived by the Fee Letter and reasonable out-of-pocket expenses required to be Administrative Agent, the Borrowers shall have paid hereunder or pursuant to all Attorney Costs of the Fee Letter, Administrative Agent to the extent invoiced at least three (3) one Business Days Day prior to the Closing Date (except as otherwise agreed to by the Borrower), in each case, shall have been paid in full in cash or will be paid on the Closing Date.
(c) Prior to or substantially simultaneously with the Closing Date, (i) the Equity Contribution in at least the amount set forth in the definition thereof plus such additional amounts of Attorney Costs as shall have been consummated and (ii) the Acquisition shall be consummated in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects of any such requests) by the Borrower that are materially adverse to the interests of the Lenders or constitute the Administrative Agent, without ’s reasonable estimates of Attorney Costs incurred or to be incurred by each of them through the prior consent closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent). Without limiting the generality of the Administrative Agent (such consent not to be unreasonably withheldprovisions of Section 4.01, delayed or conditioned) (it being understood that any modification, amendment, supplement, consent, waiver or request that results in (a) any decrease in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as such decrease reduced, on a dollar-for-dollar basis, the aggregate amount of the Initial Term Loans, (b) any increase in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as funded with proceeds of common equity or preferred equity that does not constitute Disqualified Equity Interests and (c) any adverse amendment to the definition of “Company Material Adverse Effect” is materially adverse to the interests of the Lenders and Administrative Agent ).
(d) The Administrative Agent shall have received (i) the Audited Financial Statements and (ii) the Unaudited Financial Statements.
(e) Prior to or substantially simultaneously with the Closing Date, the Refinancing shall have been consummated.
(f) The Specified Acquisition Agreement Representations shall be true and correct in all material respects on and as of the Closing Date, and the Specified Representations shall be true and correct in all material respects on and as of the Closing Date; provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(g) The Administrative Agent shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors as has been reasonably requested in writing at least five (5) Business Days prior to the Closing Date by the Administrative Agent that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act. For purposes of determining whether compliance with the Closing Date has occurredconditions specified in this Section 4.01, each Lender that has executed signed this Agreement shall be deemed to have consented to, approved or accepted, accepted or to be satisfied with, each document or other matter required hereunder thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent or shall have received notice from such Lender, as the case may be, unless such ▇▇▇▇▇▇ has notified the Administrative Agent of any disagreement Lender prior to the proposed Closing DateDate specifying its objection thereto.
Appears in 1 contract
Conditions to Closing Date. The effectiveness of this Agreement and the obligation of each Initial Term Lender to make the its Initial Term Loans Loan on the Closing Date is subject to satisfaction of the following conditions precedent (or waiver thereof in accordance with Section 10.01):precedent, except as otherwise agreed between the Company and the Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or pdf copies or other facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of HGVI or the signing Loan Party, as applicable, each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreementa Committed Loan Notice in accordance with the requirements hereof;
(ii) a Term Note executed by counterparts of this Agreement and the Borrower in favor of each Lender that has requested a Term Note at least five (5) Business Days in advance of the Closing DateFirst Lien Intercreditor Agreement;
(iii) executed counterparts of the Guaranty from each of the Loan Parties listed on the signature pages thereto;
(iv) each Collateral Document set forth on Schedule 1.01A 1.01C required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party thereto, together with (except as provided in such Collateral Documents):
(A) certificates, if any, representing the pledged equity referred all documents and instruments required to therein accompanied by undated stock powers executed in blank create and (if applicable) instruments evidencing the pledged debt referred to therein endorsed in blank; and
(B) evidence that all other actions, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy perfect the Collateral and Guarantee Requirement Agent’s security interests in the Collateral shall have been takenexecuted and delivered and, completed or otherwise provided if applicable, be in proper form for in a manner reasonably satisfactory filing (it being understood that, to the Administrative Agent and extent any security interest in any such Collateral Agent; is not or cannot be provided that if, notwithstanding the Borrower’s use of commercially reasonable efforts without undue burden or expense to cause this clause (iv) to be satisfied and/or perfected on the Closing Date, the requirements hereof Date (other than (a) the execution of each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule by each Loan Party thereto, (b1) the pledge and perfection of the security interests interest in the certificated Equity Interests equity interests of each of the Company’s wholly owned material U.S. Restricted Subsidiaries (to the extent possession of such certificates perfects a security interest thereinrequired by the Collateral and Guarantee Requirement and Section 6.11) of each direct Subsidiary (provided that, to the extent the Company has used commercially reasonable efforts to procure the delivery thereof prior to the Closing Date, certificated equity interests of the Borrower that is a Material Subsidiary that constitutes a Domestic Subsidiary (provided that wholly owned material U.S. Restricted Subsidiaries of the Target, to the extent required by the Collateral and Guarantee Requirement and Section 6.11, will only be required to be delivered and/or perfected on the Closing Date pursuant to the terms set forth above if such Equity Interests certificated equity interests are not Excluded Equityreceived by the Company from the Target) and (c2) delivery of Uniform Commercial Code financing statements (other than fixture filings on real estate) with respect assets pursuant to perfection of security interests in the assets of the Loan Parties that which a lien may be perfected by the filing of a financing statement under the Uniform Commercial Code) are not satisfied as after the Company’s use of commercially reasonable efforts to do so or without undue burden or expense, then the Closing Date, the satisfaction provision and/or perfection of a security interest in such requirements Collateral shall not be constitute a condition to the making precedent for purposes of the Initial Term Loans to the Borrower on the Closing Date (this Section 4.01, but instead shall be required to be satisfied delivered within ninety (90) days (or such longer period as promptly as practicable after the Closing Date and Administrative Agent may agree in any event within the period specified therefor writing in Schedule 6.12its discretion) (which shall be no earlier than 60 days after the Closing Date)) in accordance with, and as required by, Section 6.11;
(viv) a certificate such certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of HGVI and each Loan Party, certificates or memorandums and articles of incorporation, certificates of limited partnership or certificates of formation, including all amendments thereto, of HGVI and each Loan Party, certified (as of a recent date), if applicable, by a secretary the Secretary of State (or other Responsible Officer (1similar official) copies of Organization Documents of the Loan Parties (including any by-laws jurisdiction of its organization or other applicable operating agreement incorporation, as the case may be, certificates of the Loan Parties), (2) resolutions or other action, (3) good standing certificates, and (4) incumbency certificates and/or other certificates of Responsible Officers of HGVI and each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which HGVI or such Loan Party is a party or is to be a party on the Closing Date;
(viv) an opinion of from (x) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel to HGVI and the Loan Parties and (y) ▇▇▇▇▇▇▇▇▇ Traurig, LLP, special Florida, Arizona and Nevada counsel to the Loan Parties;
(vi) a solvency certificate from the chief financial officer, chief accounting officer or other officer with equivalent duties of the Company (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit E-2;
(vii) a certificate certificate, dated the Closing Date and signed by a Responsible Officer of the Borrower certifying that (A) since March 12Company, 2021, there shall not have occurred and be continuing, any -89- change, event, occurrence, state confirming satisfaction of facts or development that has had, or would reasonably be expected to have, a Company Material Adverse Effect and (B) the condition conditions set forth in clause Sections 4.01(d) and (c)(ii) below is satisfied;e); and
(viii) a certificate substantially in the form of Exhibit K attesting to Perfection Certificate, duly completed and executed by the Solvency of the Borrower and its Subsidiaries (on a consolidated basis) on the Closing Date after giving effect to the Transaction, from the Borrower’s chief financial officer or other officer with equivalent duties; and
(ix) a Committed Loan Notice relating to the Credit Extension to be made on the Closing DateParties.
(b) All fees and expenses due to the Agents, the Global Coordinators and the Joint Bookrunners required to be paid on the Closing Date pursuant to and (in the Fee Letter and reasonable out-of-pocket expenses required to be paid hereunder or pursuant to the Fee Letter, to the extent case of expenses) invoiced at least three (3) Business Days prior to before the Closing Date (except as otherwise reasonably agreed to by the Borrower), in each case, Company) shall have been paid in full in cash or will be paid on by the Closing DateCompany.
(c) Prior to The Joint Bookrunners shall have received, the Audited Financial Statements, the Unaudited Financial Statements and the Pro Forma Financial Statements.
(d) The Acquisition shall have been consummated, or shall be consummated substantially simultaneously concurrently with the Closing Date, (i) the Equity Contribution in at least the amount set forth in the definition thereof shall have been consummated and (ii) the Acquisition shall be consummated in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to Agreement and the Acquisition Agreement shall not have been amended or waived in any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects of any such requests) material respect by the Borrower that are Company or any of its affiliates, nor shall the Company or any of its affiliates have given a material consent thereunder, in each case in a manner materially adverse to the interests of the Lenders or the Administrative Agent, (in their capacity as such) without the prior consent of the Administrative Agent Global Coordinators (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood and agreed that any modificationchange, amendment, supplement, consent, waiver or request that results consent in respect of (ax) any decrease in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as such decrease reduced, on a dollar-for-dollar basis, the aggregate amount of the Initial Term Loans, (b) any increase in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as funded with proceeds of common equity or preferred equity that does not constitute Disqualified Equity Interests and (c) any adverse amendment to the definition of “Company Material Adverse Effect” is materially adverse to contained in the interests Acquisition Agreement or (y) Section 7.3(f) of the Lenders and Administrative Agent ).
(d) The Administrative Agent shall have received (i) the Audited Financial Statements and (ii) the Unaudited Financial Statements.
(e) Prior to or substantially simultaneously with the Closing Date, the Refinancing shall have been consummated.
(f) The Specified Acquisition Agreement Representations shall be true and correct in all material respects on and as of the Closing Date, and the Specified Representations shall be true and correct in all material respects on and as of the Closing Date; provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(g) The Administrative Agent shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors as has been reasonably requested in writing at least five (5) Business Days prior to the Closing Date by the Administrative Agent that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act. For purposes of determining whether the Closing Date has occurred, each Lender that has executed this Agreement shall be deemed to have consented tobe materially adverse to the Lenders); provided that (a) any amendment, approved waiver or accepted, or consent which results in a reduction in the purchase price for the Acquisition shall not be deemed to be satisfied with, each document or other matter required hereunder materially adverse to the Lenders to the extent it is applied to reduce the amount of commitments in respect of the Closing Date Senior Unsecured Bridge Loans and the Initial Term Loans ratably and (b) any increase in purchase price for the Acquisition shall not be deemed to be consented to or approved by or acceptable or satisfactory materially adverse to the Administrative Agent or such LenderLenders, as the case may be, unless such ▇▇▇▇▇▇ has notified the Administrative Agent of any disagreement prior to the extent such increase is not funded with any Indebtedness (other than Initial Term Loans, Closing DateDate Senior Unsecured Bridge Loans, Closing Date Senior Unsecured Notes and/or Revolving Credit Loans (as defined in the Existing RCF Credit Agreement)).
Appears in 1 contract
Conditions to Closing Date. The obligation of each Lender to make the Initial Term Loans its initial Credit Extension hereunder is subject to the satisfaction of the following conditions precedent (or waiver thereof in accordance with Section 10.01):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals facsimiles or facsimiles (followed promptly by originals) other electronic copies unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (other than in respect of clause (a)(v) below), each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this AgreementAgreement from the Borrower and each Lender with a Loan or Commitment outstanding as of the Closing Date;
(ii) a Term Note executed by the Borrower in favor of each Lender that has requested a Term Note at least five (5) Business Days in advance of the Closing Date;
(iii) executed counterparts of the Guaranty from each of the Loan Parties listed on the signature pages thereto;
(iv) each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party party thereto, together with (except as provided in such Collateral Documents):);
(A) certificates, if any, representing the pledged equity referred to therein therein, accompanied by undated stock powers powers, if applicable, executed in blank and (if applicable) instruments evidencing the pledged debt referred to therein endorsed in blank; and
(B) evidence that all other actions, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent and Collateral Agent(including, without limitation, a perfection certificate duly executed by each Loan Party); provided that if, notwithstanding the Borrower’s use of commercially reasonable efforts without undue burden or expense to cause this clause (iviii) to be satisfied on the Closing Date, the requirements hereof (other than (a) the execution of each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule by each Loan Party party thereto, (b) the pledge and perfection of security interests in the certificated Equity Interests of (to i) the extent possession of such certificates perfects a security interest thereinBorrower and (ii) of each direct Wholly Owned Subsidiary of the Borrower that is a Material Subsidiary that constitutes a Domestic Subsidiary (provided that such Equity Interests are not Excluded Equity) and ), (c) delivery of Uniform Commercial Code financing statements (other than fixture filings on real estate) with respect to perfection of security interests in the assets of the Loan Parties that may be perfected by the filing of a financing statement under the Uniform Commercial CodeCode and (d) the delivery of documents in a form sufficient to affect the recordation of security interests with the United States Copyright Office or United States Patent and Trademark Office with respect to perfection of security interests in the assets of the Loan Parties that may be perfected by filing with the United States Copyright Office or United States Patent and Trademark Office) are not satisfied as of the Closing Date, the satisfaction of such requirements shall not be a condition to the making release of the Initial Term Loans initial Credit Extension to the Borrower on the Closing Date (but shall be required to be satisfied as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.12) (which shall be no earlier than 60 days after this proviso, the Closing Date“Certain Funds Provision”);
(viv) a certificate of each Loan Party(A) such certificates, certified by a secretary or other Responsible Officer (1) copies of Organization Documents of the Loan Parties (including any by-laws or other applicable operating agreement of the Loan Parties), (2) resolutions or other action, (3) good standing certificates, action and (4) incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party on the Closing DateDate and (B) a good standing certificate (to the extent applicable) in the jurisdiction of organization of the Borrower and each Guarantor;
(viv) an opinion of ▇▇from Bass, ▇▇▇▇▇ LLP& ▇▇▇▇ PLC, counsel to the Loan Parties;
(viivi) a certificate signed by a Responsible Officer of the Borrower certifying that (A) since March 12, 2021, there shall not have occurred and be continuing, any -89- change, event, occurrence, state of facts or development that has had, or would reasonably be expected to have, a Company Material Adverse Effect and (B) the condition conditions set forth in clause clauses (c)(iid), (e), (f) and (h) below is are satisfied;
(viiivii) a certificate substantially in the form of Exhibit K attesting to the Solvency of the Borrower and its Subsidiaries (Subsidiaries, on a consolidated basis) , on the Closing Date after giving effect to the TransactionTransactions, from the Borrower’s chief financial officer or other officer with equivalent duties; andduties of the Borrower, in substantially the form of Exhibit M;
(ixviii) a Committed Loan Notice Request for Credit Extension relating to the each Credit Extension to be made on the Closing Date; and
(ix) certificates of insurance evidencing the existence of insurance to be maintained by the Borrower and its Restricted Subsidiaries pursuant to Section 6.06.
(b) All fees and expenses required to be paid on the Closing Date hereunder or pursuant to the Fee Letter Letters and reasonable out-of-pocket expenses required to be paid hereunder or pursuant to on the Fee LetterClosing Date as previously agreed in writing, in each case, to the extent invoiced at least three (3) Business Days prior to the Closing Date (except as otherwise agreed to by the Borrower), in each case, shall have been paid in full in cash or will be paid on the Closing Date.
(c) Prior to or substantially simultaneously with the Closing Date, (i) the Equity Contribution in at least the amount set forth in the definition thereof shall have been consummated and (ii) the Acquisition shall be consummated in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects of any such requests) by the Borrower that are materially adverse to the interests of the Lenders or the Administrative Agent, without the prior consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that any modification, amendment, supplement, consent, waiver or request that results in (a) any decrease in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as such decrease reduced, on a dollar-for-dollar basis, the aggregate amount of the Initial Term Loans, (b) any increase in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as funded with proceeds of common equity or preferred equity that does not constitute Disqualified Equity Interests and (c) any adverse amendment to the definition of “Company Material Adverse Effect” is materially adverse to the interests of the Lenders and Administrative Agent ).
(d) The Administrative Agent Lead Arrangers shall have received (i) the Audited Financial Statements and (ii) the Unaudited Financial Statements.
(ed) Prior to or substantially simultaneously with the initial funding on the Closing Date, the Refinancing shall have been consummated.
(fe) The Specified Acquisition Agreement Representations shall At the time of and immediately after giving effect to the Borrowing of the Initial Term Loans (together with the Revolving Credit Loans and Delayed Draw Term Loans to be true and correct in all material respects borrowed on and as of the Closing Date, if any), no Default or Event of Default shall have occurred and be continuing.
(f) On the Specified Representations Closing Date, all representations and warranties made by any Loan Party contained herein or in the other Loan Documents shall be true and correct in all material respects on and as of the Closing Date; provided that, in each case, to the extent that any such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(g) The Administrative Agent and the Lead Arrangers shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors as has been reasonably requested in writing at least five ten (510) Business Days prior to the Closing Date by the Administrative Agent and the Lead Arrangers that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsAML Laws, including without limitation the USA PATRIOT ActAct and, to the extent required by 31 C.F.R. §1010.230, a certification of the Borrower regarding beneficial ownership.
(h) Since December 31, 2020, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect. For purposes of determining whether the Closing Date has occurred, each Lender that has executed this Agreement shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to the Administrative Agent or such Lender, as the case may be, unless such ▇▇▇▇▇▇ has notified the Administrative Agent of any disagreement prior to the Closing Date.
Appears in 1 contract
Sources: Credit Agreement (Holley Inc.)
Conditions to Closing Date. The effectiveness of this Agreement and the obligation of each Initial Term Lender to make the its Initial Term Loans Loan on the Closing Date is subject to satisfaction of the following conditions precedent (or waiver thereof in accordance with Section 10.01):precedent, except as otherwise agreed between the Company and the Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or pdf copies or other facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of HGVI or the signing Loan Party, as applicable, each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreementa Committed Loan Notice in accordance with the requirements hereof;
(ii) a Term Note executed by counterparts of this Agreement and the Borrower in favor of each Lender that has requested a Term Note at least five (5) Business Days in advance of the Closing DateFirst Lien Intercreditor Agreement;
(iii) executed counterparts of the Guaranty from each of the Loan Parties listed on the signature pages thereto;
(iv) each Collateral Document set forth on Schedule 1.01A 1.01C required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party thereto, together with (except as provided in such Collateral Documents):
(A) certificates, if any, representing the pledged equity referred all documents and instruments required to therein accompanied by undated stock powers executed in blank create and (if applicable) instruments evidencing the pledged debt referred to therein endorsed in blank; and
(B) evidence that all other actions, recordings and filings that the Administrative Agent or Collateral Agent may deem reasonably necessary to satisfy perfect the Collateral and Guarantee Requirement Agent’s security interests in the Collateral shall have been takenexecuted and delivered and, completed or otherwise provided if applicable, be in proper form for in a manner reasonably satisfactory filing (it being understood that, to the Administrative Agent and extent any security interest in any such Collateral Agent; is not or cannot be provided that if, notwithstanding the Borrower’s use of commercially reasonable efforts without undue burden or expense to cause this clause (iv) to be satisfied and/or perfected on the Closing Date, the requirements hereof Date (other than (a) the execution of each Collateral Document set forth on Schedule 1.01A required to be executed on the Closing Date as indicated on such schedule by each Loan Party thereto, (b1) the pledge and perfection of the security interests interest in the certificated Equity Interests equity interests of each of the Company’s wholly owned material U.S. Restricted Subsidiaries (to the extent possession of such certificates perfects a security interest thereinrequired by the Collateral and Guarantee Requirement and Section 6.11) of each direct Subsidiary (provided that, to the extent the Company has used commercially reasonable efforts to procure the delivery thereof prior to the Closing Date, certificated equity interests of the Borrower that is a Material Subsidiary that constitutes a Domestic Subsidiary (provided that wholly owned material U.S. Restricted Subsidiaries of the Target, to the extent required by the Collateral and Guarantee Requirement and Section 6.11, will only be required to be delivered and/or perfected on the Closing Date pursuant to the terms set forth above if such Equity Interests certificated equity interests are not Excluded Equityreceived by the Company from the Target) and (c2) delivery of Uniform Commercial Code financing statements (other than fixture filings on real estate) with respect assets pursuant to perfection of security interests in the assets of the Loan Parties that which a lien may be perfected by the filing of a financing statement under the Uniform Commercial Code) are not satisfied as after the Company’s use of commercially reasonable efforts to do so or without undue burden or expense, then the Closing Date, the satisfaction provision and/or perfection of a security interest in such requirements Collateral shall not be constitute a condition to the making precedent for purposes of the Initial Term Loans to the Borrower on the Closing Date (this Section 4.01, but instead shall be required to be satisfied delivered within ninety (90) days (or such longer period as promptly as practicable after the Closing Date and Administrative Agent may agree in any event within the period specified therefor writing in Schedule 6.12its discretion) (which shall be no earlier than 60 days after the Closing Date)) in accordance with, and as required by, Section 6.11;
(viv) a certificate such certificates of good standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of HGVI and each Loan Party, certificates or memorandums and articles of incorporation, certificates of limited partnership or certificates of formation, including all amendments thereto, of HGVI and each Loan Party, certified (as of a recent date), if applicable, by a secretary the Secretary of State (or other Responsible Officer (1similar official) copies of Organization Documents of the Loan Parties (including any by-laws jurisdiction of its organization or other applicable operating agreement incorporation, as the case may be, certificates of the Loan Parties), (2) resolutions or other action, (3) good standing certificates, and (4) incumbency certificates and/or other certificates of Responsible Officers of HGVI and each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which HGVI or such Loan Party is a party or is to be a party on the Closing Date;
(viv) an opinion of from (x) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel to HGVI and the Loan Parties and (y) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, special Florida, Arizona and Nevada counsel to the Loan Parties;
(vi) a solvency certificate from the chief financial officer, chief accounting officer or other officer with equivalent duties of the Company (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit E-2;
(vii) a certificate certificate, dated the Closing Date and signed by a Responsible Officer of the Borrower certifying that (A) since March 12Company, 2021, there shall not have occurred and be continuing, any -89- change, event, occurrence, state confirming satisfaction of facts or development that has had, or would reasonably be expected to have, a Company Material Adverse Effect and (B) the condition conditions set forth in clause Sections 4.01(d) and (c)(ii) below is satisfied;e); and
(viii) a certificate substantially in the form of Exhibit K attesting to Perfection Certificate, duly completed and executed by the Solvency of the Borrower and its Subsidiaries (on a consolidated basis) on the Closing Date after giving effect to the Transaction, from the Borrower’s chief financial officer or other officer with equivalent duties; and
(ix) a Committed Loan Notice relating to the Credit Extension to be made on the Closing DateParties.
(b) All fees and expenses due to the Agents, the Global Coordinators and the Joint Bookrunners required to be paid on the Closing Date pursuant to and (in the Fee Letter and reasonable out-of-pocket expenses required to be paid hereunder or pursuant to the Fee Letter, to the extent case of expenses) invoiced at least three (3) Business Days prior to before the Closing Date (except as otherwise reasonably agreed to by the Borrower), in each case, Company) shall have been paid in full in cash or will be paid on by the Closing DateCompany.
(c) Prior to The Joint Bookrunners shall have received, the Audited Financial Statements, the Unaudited Financial Statements and the Pro Forma Financial Statements.
(d) The Acquisition shall have been consummated, or shall be consummated substantially simultaneously concurrently with the Closing Date, (i) the Equity Contribution in at least the amount set forth in the definition thereof shall have been consummated and (ii) the Acquisition shall be consummated in all material respects in accordance with the terms of the Acquisition Agreement, after giving effect to Agreement and the Acquisition Agreement shall not have been amended or waived in any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects of any such requests) material respect by the Borrower that are Company or any of its affiliates, nor shall the Company or any of its affiliates have given a material consent thereunder, in each case in a manner materially adverse to the interests of the Lenders or the Administrative Agent, (in their capacity as such) without the prior consent of the Administrative Agent Global Coordinators (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood and agreed that any modificationchange, amendment, supplement, consent, waiver or request that results consent in respect of (ax) any decrease in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as such decrease reduced, on a dollar-for-dollar basis, the aggregate amount of the Initial Term Loans, (b) any increase in the consideration for the Acquisition shall be deemed not to be materially adverse to the interests of the Administrative Agent or Lenders so long as funded with proceeds of common equity or preferred equity that does not constitute Disqualified Equity Interests and (c) any adverse amendment to the definition of “Company Material Adverse Effect” is materially adverse to contained in the interests Acquisition Agreement or (y) Section 7.3(f) of the Lenders and Administrative Agent ).
(d) The Administrative Agent shall have received (i) the Audited Financial Statements and (ii) the Unaudited Financial Statements.
(e) Prior to or substantially simultaneously with the Closing Date, the Refinancing shall have been consummated.
(f) The Specified Acquisition Agreement Representations shall be true and correct in all material respects on and as of the Closing Date, and the Specified Representations shall be true and correct in all material respects on and as of the Closing Date; provided that, in each case, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(g) The Administrative Agent shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors as has been reasonably requested in writing at least five (5) Business Days prior to the Closing Date by the Administrative Agent that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act. For purposes of determining whether the Closing Date has occurred, each Lender that has executed this Agreement shall be deemed to have consented tobe materially adverse to the Lenders); provided that (a) any amendment, approved waiver or accepted, or consent which results in a reduction in the purchase price for the Acquisition shall not be deemed to be satisfied with, each document or other matter required hereunder materially adverse to the Lenders to the extent it is applied to reduce the amount of commitments in respect of the Closing Date Senior Unsecured Bridge Loans and the Initial Term Loans ratably and (b) any increase in purchase price for the Acquisition shall not be deemed to be consented to or approved by or acceptable or satisfactory materially adverse to the Administrative Agent or such LenderLenders, as the case may be, unless such ▇▇▇▇▇▇ has notified the Administrative Agent of any disagreement prior to the extent such increase is not funded with any Indebtedness (other than Initial Term Loans, Closing DateDate Senior Unsecured Bridge Loans, Closing Date Senior Unsecured Notes and/or Revolving Credit Loans (as defined in the Existing RCF Credit Agreement)).
Appears in 1 contract