Conditions to Initial Borrowing. The obligation of each Lender to extend credit to the Borrower and of the Issuing Bank to issue Letters of Credit hereunder on the Closing Date is subject to the satisfaction prior to (or substantially simultaneously with) the consummation of the Acquisition of, or due waiver in accordance with Section 11.01 of, each of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent or otherwise set forth on Schedule 6.16: (a) The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or copies in.pdf format unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party: (i) a Committed Loan Notice, which must be delivered at least (A) three (3) Business Days Business Days prior to the Closing Date if the Borrowing on the Closing Date will be of Eurodollar Rate Loans or (B) one (1) Business Day prior to the Closing Date if the Borrowing on the Closing Date will be of Base Rate Loans; (ii) executed counterparts of this Agreement and the Guaranty; (iii) each Collateral Document set forth on Schedule 4.01(a)(iii) required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party that is a party thereto, together with: (A) certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank; (B) a Perfection Certificate duly executed by each Loan Party; and (C) to the extent required under the Collateral and Guarantee Requirement, evidence that all other actions, recordings and filings required shall have been taken, completed or otherwise provided thereunder; (iv) such certificates of good standing from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party 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 and, in the case of the Borrower including certification by a Responsible Officer of the Borrower that (x) the documents referred to in clause (vii) below are in full force and effect as of the Closing Date and (y) the conditions specified in clauses (c) and (h) below have been satisfied (it being acknowledged that the conditions specified in this Section 4.01(a)(iv) shall be deemed satisfied to the extent such documents are delivered substantially simultaneously with the consummation of the Acquisition); (v) an opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel to the Loan Parties; (vi) a solvency certificate from the chief financial officer of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit I; (vii) certified copies of the Acquisition Agreement and the schedules and exhibits thereto, duly executed by the parties thereto; (viii) copies of a recent Lien, tax and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties to the extent requested by the Administrative Agent no less than thirty (30) days prior to the Closing Date; and (ix) customary payoff letters (to the extent delivered by the Company on the Closing Date) reflecting the amounts required to fully repay all outstanding Indebtedness and providing for the termination of all commitments under the Existing Credit Agreements and, subject to the receipt of the specified repayment amounts, the release of all liens, if any, in connection therewith; provided, however, that, each of the requirements set forth in clause (iii) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Borrowing on the Closing Date after the Borrower’s use of commercially reasonable efforts to provide such items on or prior to the Closing Date if the Borrower agrees to deliver, or cause to be delivered, such documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Closing Date (subject to extensions approved by the Administrative Agent in its reasonable discretion); provided, further, that with respect to the requirements set forth in clauses (ii), (iii) and (iv) above, above, each document or instrument required to be executed by a Loan Party other than Holdings or the Borrower (a “Post-Closing Loan Party”), such execution shall not be a condition to the funding of the Facilities and such Post-Closing Loan Party shall execute and deliver such Loan Documents after consummation of the Acquisition, but no later than 5:00 p.m., New York City time, on the Closing Date. (b) All fees and expenses required to be paid hereunder on the Closing Date (and all fees and expenses required to be paid under the Commitment Letter and the Fee Letter on the Closing Date) and, with respect to expenses and legal fees, to the extent invoiced in reasonable detail at least two (2) Business Days before the Closing Date (except as otherwise reasonably agreed to by the Borrower) shall have been paid in full in cash. (c) Prior to or substantially simultaneously with the initial Borrowing on the Closing Date, (i) the Equity Contribution shall have been consummated; and (ii) the Acquisition shall be consummated in accordance with the terms of the Acquisition Agreement (without giving effect to any amendments or waivers thereto since June 14, 2014 that are materially adverse to the Lenders without the consent of each Lead Arranger, such consent not to be unreasonably withheld, conditioned or delayed); provided that (A) any material change to the definition of “Material Adverse Effect” contained in the Acquisition Agreement or any change or waiver of the condition precedent set forth in Section 9.2(a) of the Acquisition Agreement (as it relates to the representation Section 5.6(a) of the Acquisition Agreement) of the Acquisition Agreement, shall be deemed to be materially adverse to the Lenders and shall require the consent of each Lead Arranger, (B) a reduction in the purchase price under the Acquisition Agreement shall be deemed not to be materially adverse so long as it is allocated (1) first, to a reduction in the Equity Contribution until the Equity Contribution shall equal the Minimum Equity Contribution and (2) thereafter, (x) 70.0% to reduce the Term Loan Commitments and the commitments under the Second Lien Credit Agreement (on a pro rata basis) dollar for dollar and (y) 30.0% to the Equity Contribution and (C) any change to the terms of the Acquisition Agreement that increases the cash consideration required to be paid by the Borrower thereunder shall not be deemed to be materially adverse if such increase is funded with an increase in the aggregate amount of the Equity Contribution. (d) The Second Lien Credit Documents required by the terms of the Second Lien Credit Agreement to be executed on the Closing Date, shall have been duly executed and delivered by each Loan Party thereto, shall be in full force and effect and shall be on terms as substantially provided for in the Commitment Letter or otherwise reasonably satisfactory to each Lead Arranger and the Administrative Agent shall have received a certified copy of the executed Second Lien Credit Agreement. Prior to or substantially simultaneously with the initial Borrowing on the Closing Date, the Borrower shall have received at least $760,000,000 in gross cash proceeds from the Second Lien Term Loan. (e) The Closing Date Refinancing shall have been consummated prior to or substantially concurrently with the Acquisition. (f) The Lenders shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Loan Parties reasonably requested in writing by them at least ten (10) Business Days prior to the Closing Date in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. (g) The Acquisition Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality,” “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Closing Date; provided that, to the extent that any Acquisition Agreement Representation specifically refers to an earlier date, it shall be true and correct in all material respects as of such earlier date; provided further that a failure of any Acquisition Agreement Representation to be true and correct shall not (i) result in a failure of the condition to the initial availability of the Facilities on the Closing Date or (ii) result in a Default or Event of Default, unless, in each case, such failure results in a failure of a condition precedent to the Borrower’s (or any Affiliates’) obligation to consummate the Acquisition pursuant to the terms of the Acquisition Agreement.
Appears in 1 contract
Sources: First Lien Credit Agreement (Advantage Solutions Inc.)
Conditions to Initial Borrowing. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of each Lender to extend credit to the Borrower and of the Issuing Bank to issue Letters any Letter of Credit hereunder shall not become effective until the date on the Closing Date is subject to the satisfaction prior to (or substantially simultaneously with) the consummation of the Acquisition of, or due waiver in accordance with Section 11.01 of, which each of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent is satisfied (or otherwise set forth on Schedule 6.16:waived in accordance with Section 10.2).
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or copies in.pdf format unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party:
(i) a Committed Loan Notice, which must be delivered at least (A) three (3) Business Days Business Days prior to the Closing Date if the Borrowing on the Closing Date will be of Eurodollar Rate Loans or (B) one (1) Business Day prior to the Closing Date if the Borrowing on the Closing Date will be of Base Rate Loans;
(ii) executed counterparts of this Agreement and the Guaranty;
(iii) each Collateral Document set forth on Schedule 4.01(a)(iii) required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party that is a party thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) a Perfection Certificate duly executed by each Loan Party; and
(C) to the extent required under the Collateral and Guarantee Requirement, evidence that all other actions, recordings and filings required Agent shall have been taken, completed or otherwise provided thereunder;
(iv) such certificates of good standing from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or received all fees and other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing the identity, authority amounts due 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 and, in the case of the Borrower including certification by a Responsible Officer of the Borrower that (x) the documents referred to in clause (vii) below are in full force and effect as of the Closing Date and (y) the conditions specified in clauses (c) and (h) below have been satisfied (it being acknowledged that the conditions specified in this Section 4.01(a)(iv) shall be deemed satisfied to the extent such documents are delivered substantially simultaneously with the consummation of the Acquisition);
(v) an opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel to the Loan Parties;
(vi) a solvency certificate from the chief financial officer of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit I;
(vii) certified copies of the Acquisition Agreement and the schedules and exhibits thereto, duly executed by the parties thereto;
(viii) copies of a recent Lien, tax and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties to the extent requested by the Administrative Agent no less than thirty (30) days prior to the Closing Date; and
(ix) customary payoff letters (to the extent delivered by the Company on the Closing Date) reflecting the amounts required to fully repay all outstanding Indebtedness and providing for the termination of all commitments under the Existing Credit Agreements and, subject to the receipt of the specified repayment amounts, the release of all liens, if any, in connection therewith; provided, however, that, each of the requirements set forth in clause (iii) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Borrowing on the Closing Date after the Borrower’s use of commercially reasonable efforts to provide such items payable on or prior to the Closing Date if Date, including reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel to the Administrative Agent) required to be reimbursed or paid by the Borrower agrees to deliverhereunder, or cause to be delivered, such documents under any other Loan Document and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Closing Date (subject to extensions approved by under any agreement with the Administrative Agent in its reasonable discretion); providedor SunTrust Capital Markets, furtherInc., that with respect as Arranger for which invoices (including estimated expenses) have been presented to the requirements set forth in clauses (ii), (iii) and (iv) above, above, each document or instrument required to be executed by a Loan Party other than Holdings or the Borrower (a “Post-Closing Loan Party”), such execution shall not be a condition to the funding of the Facilities and such Post-Closing Loan Party shall execute and deliver such Loan Documents after consummation of the Acquisition, but no later than 5:00 p.m., New York City time, on 2 days before the Closing Date.
(b) All fees The Administrative Agent or the Collateral Agent (or their counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto;
(ii) duly executed Revolving Credit Notes payable to those Lenders requesting the same and expenses required the Swingline Note payable to be paid hereunder on the Closing Date Swingline Lender;
(iii) the Subsidiary Guaranty Agreement duly executed by each Guarantor;
(iv) the Pledge Agreement duly executed by the Borrower and all fees each Guarantor, together with (i) original stock certificates evidencing the issued and expenses required outstanding shares of Capital Stock pledged to be paid the Collateral Agent to the Pledge Agreement, and (ii) stock powers or other appropriate instruments of transfer executed in blank;
(v) the Security Agreement duly executed by the Borrower and each Guarantor, together with (i) UCC financing statements and other applicable documents under the Commitment Letter and laws of the Fee Letter on the Closing Date) and, jurisdictions with respect to expenses the perfection of the Liens granted under the Security Agreement, as required in order to perfect such Liens, (ii) copies of UCC, tax, and judgment search reports in all necessary or appropriate jurisdictions and under all legal feesand trade names of the Loan Parties requested by the Lenders, indicating that there are no prior Liens on any of the Collateral other than Permitted Liens, (iii) a Perfection Certificate duly completed and executed by the Loan Parties, and (iv) duly executed Copyright Security Agreements, Patent Security Agreements and Trademark Security Agreements, if applicable;
(vi) duly executed termination and payoff letters, in form and substance satisfactory to the extent invoiced in reasonable detail at least two (2) Business Days before the Closing Date (except as otherwise reasonably agreed Administrative Agent, executed by each lender holding credit facilities or Indebtedness to by the Borrower) shall have been paid in full in cash.
(c) Prior to be terminated or substantially simultaneously with the initial Borrowing refinanced on the Closing Date, together with all releases, terminations or other documents reasonably required by the Administrative Agent to evidence the termination and payoff of such credit facilities or Indebtedness; other than outstanding letters of credit (i) which have been cash collateralized in a manner satisfactory to the Equity Contribution Administrative Agent, (ii) which have been assumed as a part of the obligations under the LC Commitments, or (iii) pursuant to which a letter of credit has been issued under the LC Commitments backstopping each such outstanding letter of credit.
(vii) certificates of insurance issued by Borrower’s broker on behalf of insurers of the Borrower and all Subsidiaries, describing in reasonable detail the types and amounts of insurance (property and liability, and flood insurance where applicable) maintained by the Borrower and all Subsidiaries, naming the Collateral Agent as additional insured and/or loss payee, as appropriate;
(viii) such financial information with respect to the Borrower or its Subsidiaries as the Administrative Agent may reasonably request;
(ix) a certificate of the Secretary or Assistant Secretary of each Loan Party attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, or partnership agreement or limited liability company agreement, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Loan Documents to which it is a party and certifying the name, title and true signature of each officer of such Loan Party executing the Loan Documents to which it is a party;
(x) to the extent not delivered under clause (ix) certified copies of the articles or certificate of incorporation, certificate of organization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of such Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(xi) a favorable written opinion of B▇▇▇▇ B▇▇▇▇ LLP, and local counsel to the Loan Parties and/or their Subsidiaries, addressed to the Administrative Agent and each of the Lenders, and covering such matters relating to the Loan Parties, the Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request, including, without limitation, a no conflicts opinion with respect to other material agreements;
(xii) Evidence reasonably satisfactory to the Administrative Agent as to the absence of any default or event of default existing under those certain 6 1/8% Senior Notes Due 2013 (the “Senior Notes”) issued by the Borrower pursuant to the Indenture;
(xiii) a certificate dated the Closing Date and signed by a Responsible Officer, certifying that (x) no Default or Event of Default exists, (y) all representations and warranties of each Loan Party set forth in the Loan Documents are true and correct in all material respects. except the extent limited to an earlier date and (z) since the date of the financial statements of the Borrower described in Section 4.4, there shall have been consummated; and (ii) the Acquisition shall no change which has had or could reasonably be consummated in accordance with the terms of the Acquisition Agreement (without giving effect expected to any amendments or waivers thereto since June 14, 2014 that are materially adverse to the Lenders without the consent of each Lead Arranger, such consent not to be unreasonably withheld, conditioned or delayed); provided that (A) any material change to the definition of “have a Material Adverse Effect” contained in ;
(xiv) a duly executed Notice of Borrowing;
(xv) a duly executed funds disbursement agreement, together with a report setting forth the Acquisition Agreement or any change or waiver sources and uses of the condition precedent set forth in Section 9.2(aproceeds hereof;
(xvi) certified copies of the Acquisition Agreement (as it relates to the representation Section 5.6(a) of the Acquisition Agreement) of the Acquisition Agreementall consents, shall be deemed to be materially adverse to the Lenders approvals, authorizations, registrations and shall require the consent of each Lead Arranger, (B) a reduction in the purchase price under the Acquisition Agreement shall be deemed not to be materially adverse so long as it is allocated (1) first, to a reduction in the Equity Contribution until the Equity Contribution shall equal the Minimum Equity Contribution filings and (2) thereafter, (x) 70.0% to reduce the Term Loan Commitments and the commitments under the Second Lien Credit Agreement (on a pro rata basis) dollar for dollar and (y) 30.0% to the Equity Contribution and (C) any change to the terms of the Acquisition Agreement that increases the cash consideration orders required to be paid made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the Borrower thereunder shall not be deemed to be materially adverse if such increase is funded with an increase in the aggregate amount execution, delivery, performance, validity and enforceability of the Equity Contribution.
(d) The Second Lien Credit Loan Documents required by the terms or any of the Second Lien Credit Agreement to be executed on the Closing Datetransactions contemplated thereby, shall have been duly executed and delivered by each Loan Party theretosuch consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be on terms ongoing;
(xvii) a duly completed and executed certificate of the type described in Section 5.1(c) including calculations of the financial covenants set forth in Article VI hereof as substantially provided for of March 31, 2006;
(xviii) the most current information available as of August 2, 2006 in respect of certain inquiries or investigations by the Securities and Exchange Commission and the Department of Justice then pending or threatened in respect of the Borrower or its Subsidiaries and any other related investigations (the “Disclosed Items”), and since such date there shall not have been any adverse developments or occurrences (excluding any such developments or occurrences that were expressly identified and described in the Commitment Letter Disclosed Items) in respect of any such matters that has had or otherwise could reasonably satisfactory be expected to cause a Material Adverse Effect; and
(xix) certified copies of all agreements, indentures or notes governing the terms of any Material Indebtedness and all other material agreements, documents and instruments to which any Loan Party or any of its assets are bound.
(c) No action, suit, investigation or proceeding shall be pending or threatened in any court or before any arbitrator, governmental authority, the Department of Justice, or the Securities and Exchange Commission that could reasonably be expected to have a Material Adverse Effect, excluding in each Lead Arranger and case the effects of the matters as described in the Disclosed Items.
(d) The Administrative Agent shall have received a certified copy of completed its due diligence, with results reasonably satisfactory to the executed Second Lien Credit Agreement. Prior Administrative Agent, with respect to any pending Securities and Exchange Commission or substantially simultaneously with the initial Borrowing other governmental investigations or inquiries existing on the Closing Date, the Borrower shall have received at least $760,000,000 in gross cash proceeds from the Second Lien Term Loan.
(e) The Closing Date Refinancing shall have been consummated prior to or substantially concurrently with the Acquisition.
(f) The Lenders shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Loan Parties reasonably requested in writing by them at least ten (10) Business Days prior to the Closing Date in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(g) The Acquisition Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality,” “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Closing Date; provided that, to the extent that any Acquisition Agreement Representation specifically refers to an earlier date, it shall be true and correct in all material respects as of such earlier date; provided further that a failure of any Acquisition Agreement Representation to be true and correct shall not (i) result in a failure of the condition to the initial availability of the Facilities on the Closing Date or (ii) result in a Default or Event of Default, unless, in each case, such failure results in a failure of a condition precedent to the Borrower’s (or any Affiliates’) obligation to consummate the Acquisition pursuant to the terms of the Acquisition Agreement.
Appears in 1 contract
Conditions to Initial Borrowing. The obligation of each Lender to extend credit to the Borrower and of the Issuing Bank to issue Letters of Credit hereunder on the Closing Date is subject to the satisfaction prior to (or substantially simultaneously with) the consummation of the Acquisition ofsatisfaction, or due waiver in accordance with Section 11.01 of11.01, of each of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent or otherwise set forth on Schedule 6.16Lenders:
(a) The Administrative Agent’s and the Lenders’ receipt of the following, each of which shall be originals, facsimiles or copies in.pdf in .pdf format unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party:
(i) a Committed Loan Notice, which must be Notice duly executed by the Borrower delivered at least (A) three (3) Business Days Business Days prior to the Closing Date if the Borrowing on the Closing Date will be of Eurodollar Rate Loans or (B) one (1) Business Day prior to the Closing Date if the Borrowing but which may be conditioned on the Closing Date will be consummation of Base Rate Loansthe Transactions;
(ii) executed counterparts of this Agreement duly executed by the Borrower and the GuarantyHoldings;
(iii) the Guaranty and the Security Agreement, in each Collateral Document set forth on Schedule 4.01(a)(iii) required to be executed on the Closing Date as indicated on such schedulecase, duly executed by the Borrower and each other Loan Party that is a party theretoParty, together with:
(A) copies of certificates, if any, representing the Pledged Equity referred to therein of the Borrower and its Subsidiaries and constituting Collateral, in each case, accompanied by copies of undated stock powers executed in blank and instruments evidencing blank, in each case, including evidence reasonably satisfactory to the Pledged Debt indorsed in blankLenders that such collateral was delivered on or prior to the Closing Date to the First Lien Collateral Agent;
(B) a Perfection Certificate duly executed by each the Borrower on behalf of the Loan PartyParties; and
(C) and to the extent required under the Collateral and Guarantee RequirementDocuments, evidence that all other actions, recordings and filings required shall have been taken, completed or otherwise provided thereunder;
(C) UCC financing statements in proper form for filing with authorization to file all Uniform Commercial Code financing statements in the jurisdiction of organization of each Loan Party.
(iv) the Closing Date Intercreditor Agreement duly executed by the First Lien Collateral Agent and an acknowledgement thereof duly executed by the Loan Parties;
(v) such certificates of good standing from the applicable secretary of state of the state of organization of the Borrower and each other Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower and each other Loan Party Party, 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 it is a party or is to be a party on the Closing Date and, in the case of the Borrower Borrower, including certification by a Responsible Officer of the Borrower that (x) the documents referred to in clause (vii) below are in full force and effect as of the Closing Date and (y) the conditions specified in clauses (c), (e) and (hf) below have been satisfied (it being acknowledged that the conditions specified in this Section 4.01(a)(iv) shall be deemed satisfied to the extent such documents are delivered substantially simultaneously with the consummation of the Acquisition)satisfied;
(vvi) an opinion from the following special counsel to the Loan Parties (or certain of the Loan Parties): (A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special with respect to matters of New York counsel law and certain aspects of California and Delaware law, and (B) Miller, Pitt, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ P.C., with respect to the Loan Partiesmatters of Arizona law;
(vivii) a solvency certificate from the chief financial officer or other officer with equivalent duties of the Borrower as to the Solvency (after giving effect to the TransactionsTransactions on the Closing Date) of the Borrower substantially in the form attached hereto as Exhibit I;
(vii) certified copies of the Acquisition Agreement and the schedules and exhibits thereto, duly executed by the parties thereto;; and
(viii) copies of a recent Lien, tax and judgment search in each jurisdiction reasonably requested by the Administrative Agent Lenders with respect to the Loan Parties to the extent requested by the Administrative Agent no less than thirty (30) days prior to the Closing DateParties; and
(ix) customary payoff letters (to the extent delivered by the Company on the Closing Date) reflecting the amounts required to fully repay all outstanding Indebtedness and providing for the termination of all commitments under the Existing Credit Agreements and, subject to the receipt certified copies of the specified repayment amountsFirst Lien Credit Agreement, the release of all liens, if any, in connection therewith; provided, however, that, each of the requirements set forth in clause (iii) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the First Lien Security Agreement and to the extent that a First Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates Guaranty comprising part of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Borrowing on the Closing Date after the Borrower’s use of commercially reasonable efforts to provide such items on or prior to the Closing Date if the Borrower agrees to deliver, or cause to be delivered, such documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Closing Date (subject to extensions approved by the Administrative Agent in its reasonable discretion); provided, further, that with respect to the requirements set forth in clauses (ii), (iii) and (iv) above, above, each document or instrument required to be executed by a First Lien Loan Party other than Holdings or the Borrower (a “Post-Closing Loan Party”), such execution shall not be a condition to the funding of the Facilities and such Post-Closing Loan Party shall execute and deliver such Loan Documents after consummation of the Acquisition, but no later than 5:00 p.m., New York City time, on the Closing DateDocuments.
(b) All fees and expenses required to be paid hereunder on the Closing Date (and all fees and expenses required to be paid under the Commitment Agency Fee Letter and the Fee Letter on the Closing Date) and, with respect to expenses and legal fees, to the extent invoiced in reasonable detail at least two (2) Business Days before the Closing Date (except as otherwise reasonably agreed to by the Borrower) shall have been paid in full in cash.
(c) Prior to or substantially simultaneously , it being agreed that such fees and expenses may be paid with the initial Borrowing on the Closing Date, (i) the Equity Contribution shall have been consummated; and (ii) the Acquisition shall be consummated in accordance with the terms proceeds of the Acquisition Agreement (without giving effect to any amendments initial funding of one or waivers thereto since June 14, 2014 that are materially adverse to the Lenders without the consent of each Lead Arranger, such consent not to be unreasonably withheld, conditioned or delayed); provided that (A) any material change to the definition of “Material Adverse Effect” contained in the Acquisition Agreement or any change or waiver more of the condition precedent set forth in Section 9.2(a) of the Acquisition Agreement (as it relates to the representation Section 5.6(a) of the Acquisition Agreement) of the Acquisition AgreementFacilities. In addition, shall be deemed to be materially adverse to the Lenders and shall require the consent of each Lead Arranger, (B) a reduction in the purchase price under the Acquisition Agreement shall be deemed not to be materially adverse so long as it is allocated (1) first, to a reduction in the Equity Contribution until the Equity Contribution shall equal the Minimum Equity Contribution and (2) thereafter, (x) 70.0% to reduce the Term Loan Commitments and the commitments under the Second Lien Credit Agreement (on a pro rata basis) dollar for dollar and (y) 30.0% to the Equity Contribution and (C) any change to the terms of the Acquisition Agreement that increases the cash consideration required to be paid by the Borrower thereunder shall not be deemed to be materially adverse if such increase is funded with an increase in the aggregate amount of the Equity Contribution.
(d) The Second Lien Credit Documents required by the terms of the Second Lien Credit Agreement to be executed on the Closing Date, shall have been duly executed and delivered by each Loan Party thereto, shall be in full force and effect and shall be on terms as substantially provided for in the Commitment Letter or otherwise reasonably satisfactory to each Lead Arranger and the Administrative Agent shall have received a certified fully executed copy of the executed Second Lien Credit Agreement. Prior Agency Fee Letter.
(c) Confirmation from the Borrower that prior to or substantially simultaneously with the initial Borrowing on the Closing Date, the Borrower Closing Date Refinancing, and the funding of the First Lien Initial Term Loans shall have been or will be consummated.
(d) The Lenders and the Agents shall have received at least $760,000,000 in gross cash proceeds from the Second Lien Term Loan.
(ea) The Closing Date Refinancing shall have been consummated prior to or substantially concurrently with the Acquisition.
(f) The Lenders shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Loan Parties reasonably requested in writing by them at least ten (10) Business Days prior to the Closing Date in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, that in each case has been requested in writing at least ten Business Days prior to the Closing Date, and (b) at least two Business Days prior to the Closing Date, a Beneficial Ownership Certification.
(ge) The Acquisition Agreement Representations representations and warranties of the Specified Representations Borrower and each other Loan Party contained in Article V or any other Loan Document shall be true and correct in all material respects (or, if qualified by “materiality,” “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the date of the Closing Date; provided that, to the extent that any Acquisition Agreement Representation such representations and warranties specifically refers refer to an earlier date, it they shall be true and correct in all material respects as of such earlier date; provided further provided, further, that a failure of any Acquisition Agreement Representation representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct shall not (iafter giving effect to any qualification therein) result in a failure all respects on such respective dates.
(f) As of the condition to the initial availability of the Facilities on the Closing Date or (ii) result in a Date, no Default or Event of DefaultDefault shall have occurred and be continuing on such date (immediately prior to giving effect to the extensions of credit requested to be made) or would result after giving effect to the extensions of credit requested to be made on such date.
(g) The Administrative Agent and the Lenders shall have received an unaudited pro forma consolidated balance sheet and related unaudited pro forma consolidated statement of comprehensive income (loss) of the Borrower and its Subsidiaries as of and for the twelve month period ending on December 31, unless2018, in each case, such failure results in a failure of a condition precedent giving effect to the Borrower’s Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or any Affiliates’) obligation at the beginning of such period (in the case of such statement of comprehensive income (loss)), 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 (including adjustments of the type contemplated by Financial Accounting Standards Board Accounting Standards Codification 805, Business Combinations (formerly SFAS 141R)). Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement or funded Loans hereunder shall be deemed to consummate have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Acquisition pursuant Administrative Agent shall have received notice from such Lender prior to the terms of the Acquisition Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Mister Car Wash, Inc.)
Conditions to Initial Borrowing. The obligation of each Lender to extend credit to the Borrower and of the Issuing Bank to issue Letters of Credit make a Borrowing hereunder on the Closing Date is subject to the satisfaction prior to (or substantially simultaneously with) the consummation of the Acquisition of, or due waiver in accordance with Section 11.01 of, each of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent or otherwise set forth on Schedule 6.16Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals, facsimiles or copies in.pdf format ) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) a Committed Loan Notice, which must be delivered at least (A) three (3) Business Days Business Days prior to Notice in accordance with the Closing Date if the Borrowing on the Closing Date will be of Eurodollar Rate Loans or (B) one (1) Business Day prior to the Closing Date if the Borrowing on the Closing Date will be of Base Rate Loansrequirements hereof;
(ii) executed counterparts of this Agreement and the Guaranty;
(iii) a Note executed by the Borrower in favor of each Lender that has requested a Note at least two (2) Business Days in advance of the Closing Date;
(iv) each Collateral Document set forth on Schedule 4.01(a)(iii) 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party that is a party thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) a Perfection Certificate duly executed by each Loan Party; and
(C) to the extent required under the Collateral and Guarantee Requirement, opinions of local counsel for the Loan Parties in states in which the Mortgaged Properties are located, with respect to the enforceability and perfection of the Mortgages and any related fixture filings in form and substance reasonably satisfactory to the Administrative Agent; and
(C) evidence that all other actions, recordings and filings required that the Administrative Agent and the Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided thereunderfor in a manner reasonably satisfactory to the Administrative Agent;
(ivv) such certificates of good standing from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, 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 and, in the case of the Borrower including certification by a Responsible Officer of the Borrower that (x) the documents referred to in clause (vii) below are in full force and effect as of the Closing Date and (y) the conditions specified in clauses (c) and (h) below have been satisfied (it being acknowledged that the conditions specified in this Section 4.01(a)(iv) shall be deemed satisfied to the extent such documents are delivered substantially simultaneously with the consummation of the Acquisition)Date;
(vvi) an opinion from ▇▇▇▇▇▇ Ropes & ▇▇▇▇▇▇▇ LLP, special New York counsel to the Loan PartiesParties substantially in the form of Exhibit G;
(vivii) a solvency certificate from the chief financial officer of the Borrower (after giving effect to the TransactionsTransaction) substantially in the form attached hereto as Exhibit IK;
(viiviii) evidence that all insurance (including title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent shall have requested to be so named;
(ix) certified copies of the Acquisition Merger Agreement and the schedules and exhibits thereto, duly executed by the parties thereto;
(viii) copies of a recent Lien, tax and judgment search in each jurisdiction reasonably requested by the Administrative Agent together with respect to the Loan Parties to the extent requested by the Administrative Agent no less than thirty (30) days prior to the Closing Date; and
(ix) customary payoff letters (to the extent delivered by the Company on the Closing Date) reflecting the amounts required to fully repay all outstanding Indebtedness and providing for the termination of all commitments under the Existing Credit Agreements and, subject to the receipt of the specified repayment amounts, the release of all liens, if any, in connection therewith; provided, however, that, each of the requirements set forth in clause (iii) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Borrowing on the Closing Date after the Borrower’s use of commercially reasonable efforts to provide such items on or prior to the Closing Date if the Borrower agrees to deliver, or cause to be delivered, such documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Closing Date (subject to extensions approved by the Administrative Agent in its reasonable discretion); provided, further, that with respect to the requirements set forth in clauses (ii), (iii) and (iv) above, above, each document or instrument required to be executed by a Loan Party other than Holdings or the Borrower (a “Post-Closing Loan Party”), such execution shall not be a condition to the funding of the Facilities and such Post-Closing Loan Party shall execute and deliver such Loan Documents after consummation of the Acquisition, but no later than 5:00 p.m., New York City time, on the Closing Date.
(b) All fees and expenses required to be paid hereunder on the Closing Date (and all fees and expenses required to be paid under the Commitment Letter and the Fee Letter on the Closing Date) and, with respect to expenses and legal fees, to the extent invoiced in reasonable detail at least two (2) Business Days before the Closing Date (except as otherwise reasonably agreed to by the Borrower) shall have been paid in full in cash.
(c) Prior to or substantially simultaneously with the initial Borrowing on the Closing Date, (i) the Equity Contribution shall have been consummated; and (ii) the Acquisition shall be consummated in accordance with the terms of the Acquisition Agreement (without giving effect to any amendments or waivers thereto since June 14, 2014 that are materially adverse to the Lenders without the consent of each Lead Arranger, such consent not to be unreasonably withheld, conditioned or delayed); provided that (A) any material change to the definition of “Material Adverse Effect” contained in the Acquisition Agreement or any change or waiver of the condition precedent set forth in Section 9.2(a) of the Acquisition Agreement (as it relates to the representation Section 5.6(a) of the Acquisition Agreement) of the Acquisition Agreement, shall be deemed to be materially adverse to the Lenders and shall require the consent of each Lead Arranger, (B) a reduction in the purchase price under the Acquisition Agreement shall be deemed not to be materially adverse so long as it is allocated (1) first, to a reduction in the Equity Contribution until the Equity Contribution shall equal the Minimum Equity Contribution and (2) thereafter, (x) 70.0% to reduce the Term Loan Commitments and the commitments under the Second Lien Credit Agreement (on a pro rata basis) dollar for dollar and (y) 30.0% to the Equity Contribution and (C) any change to the terms of the Acquisition Agreement that increases the cash consideration required to be paid by the Borrower thereunder shall not be deemed to be materially adverse if such increase is funded with an increase in the aggregate amount of the Equity Contribution.
(d) The Second Lien Credit Documents required by the terms of the Second Lien Credit Agreement to be executed on the Closing Date, shall have been duly executed and delivered by each Loan Party thereto, shall be in full force and effect and shall be on terms as substantially provided for in the Commitment Letter or otherwise reasonably satisfactory to each Lead Arranger and the Administrative Agent shall have received a certified copy of the executed Second Lien Credit Agreement. Prior to or substantially simultaneously with the initial Borrowing on the Closing Date, the Borrower shall have received at least $760,000,000 in gross cash proceeds from the Second Lien Term Loan.
(e) The Closing Date Refinancing shall have been consummated prior to or substantially concurrently with the Acquisition.
(f) The Lenders shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Loan Parties reasonably requested in writing by them at least ten (10) Business Days prior to the Closing Date in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(g) The Acquisition Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materialityagreements,” “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Closing Date; provided that, to the extent that any Acquisition Agreement Representation specifically refers to an earlier date, it shall be true and correct in all material respects as of such earlier date; provided further that a failure of any Acquisition Agreement Representation to be true and correct shall not (i) result in a failure of the condition to the initial availability of the Facilities on the Closing Date or (ii) result in a Default or Event of Default, unless, in each case, such failure results in a failure of a condition precedent to the Borrower’s (or any Affiliates’) obligation to consummate the Acquisition pursuant to the terms of the Acquisition Agreement.
Appears in 1 contract
Sources: Credit Agreement (J Crew Group Inc)
Conditions to Initial Borrowing. The obligation of each Lender to extend credit to the Borrower and of the Issuing Bank to issue Letters of Credit make a Borrowing hereunder on the Closing Date is subject to the satisfaction prior to (or substantially simultaneously with) the consummation of the Acquisition of, or due waiver in accordance with Section 11.01 of, each of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent or otherwise set forth on Schedule 6.16Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, originals or facsimiles or “PDF” copies in.pdf format (in each case followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) a Committed Loan Notice, which must be delivered at least (A) three (3) Business Days Business Days prior to Notice in accordance with the Closing Date if the Borrowing on the Closing Date will be of Eurodollar Rate Loans or (B) one (1) Business Day prior to the Closing Date if the Borrowing on the Closing Date will be of Base Rate Loansrequirements hereof;
(ii) executed counterparts of this Agreement and the Guaranty;
(iii) a Note executed by the Borrower in favor of each Lender that has requested a Note at least two (2) Business Days in advance of the Closing Date;
(iv) each Collateral Document set forth on Schedule 4.01(a)(iii) 1.01A required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party that is a party thereto, together with:
(A) with evidence that certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blankblank have been delivered to the First Lien Term Administrative Agent;
(B) a Perfection Certificate duly executed by each Loan Party; and
(C) to the extent required under the Collateral and Guarantee Requirement, evidence that all other actions, recordings and filings required shall have been taken, completed or otherwise provided thereunder;
(ivv) such certificates of good standing from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, 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 and, in the case of the Borrower including certification by a Responsible Officer of the Borrower that (x) the documents referred to in clause (vii) below are in full force and effect as of the Closing Date and (y) the conditions specified in clauses (c) and (h) below have been satisfied (it being acknowledged that the conditions specified in this Section 4.01(a)(iv) shall be deemed satisfied to the extent such documents are delivered substantially simultaneously with the consummation of the Acquisition)Date;
(vvi) an opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel to the Loan Parties;Parties substantially in the form of Exhibit G-1 and an opinion from ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP, Ohio counsel to the Loan Parties substantially in the form of Exhibit G-2.
(vivii) a solvency certificate from the chief financial officer of the Borrower (after giving effect to the Transactions2018 Refinancing Transaction) substantially in the form attached hereto as Exhibit I;
(vii) certified copies of the Acquisition Agreement and the schedules and exhibits thereto, duly executed by the parties theretoK;
(viii) evidence that all insurance (other than title insurance) required to be maintained pursuant to the Loan Documents as of the Closing Date has been obtained and is in effect and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent shall have requested to be so named;
(ix) (A) a completed “life of the loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property duly executed and acknowledged by the appropriate Loan Parties and (B) with respect to any Mortgaged Property which is designated as a “flood hazard area” in any Flood Insurance Rate Map established by the Federal Emergency Management Agency (or any successor agency), and evidence of flood insurance as required by Section 6.07 hereof; and
(x) copies of a recent Lien, tax Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties to the extent requested by the Administrative Agent no less than thirty (30) days prior to the Closing Date; and
(ix) customary payoff letters (to the extent delivered by the Company on the Closing Date) reflecting the amounts required to fully repay all outstanding Indebtedness and providing for the termination of all commitments under the Existing Credit Agreements and, subject to the receipt of the specified repayment amounts, the release of all liens, if any, in connection therewith; provided, however, that, each of the requirements set forth in clause (iii) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Borrowing on the Closing Date after the Borrower’s use of commercially reasonable efforts to provide such items on or prior to the Closing Date if the Borrower agrees to deliver, or cause to be delivered, such documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Closing Date (subject to extensions approved by the Administrative Agent in its reasonable discretion); provided, further, that with respect to the requirements set forth in clauses (ii), (iii) and (iv) above, above, each document or instrument required to be executed by a Loan Party other than Holdings or the Borrower (a “Post-Closing Loan Party”), such execution shall not be a condition to the funding of the Facilities and such Post-Closing Loan Party shall execute and deliver such Loan Documents after consummation of the Acquisition, but no later than 5:00 p.m., New York City time, on the Closing DateParties.
(b) All fees and expenses required to be paid hereunder on the Closing Date (and all fees and expenses required to be paid under the Commitment Letter and the Fee Letter on the Closing Date) and, with respect to expenses and legal fees, to the extent invoiced in reasonable detail at least two (2) Business Days before the Closing Date (except as otherwise reasonably agreed to by the Borrower) shall have been paid in full in cash.
(c) Prior to or substantially simultaneously with The Administrative Agent shall have received reasonably satisfactory evidence that the initial Borrowing Topco Notes have been called for redemption in full on a redemption date that is no later than the Closing Date, (i) the Equity Contribution shall have been consummated; and (ii) the Acquisition shall be consummated in accordance with the terms of the Acquisition Agreement (without giving effect to any amendments or waivers thereto since June 14, 2014 that are materially adverse to the Lenders without the consent of each Lead Arranger, such consent not to be unreasonably withheld, conditioned or delayed); provided that (A) any material change to the definition of “Material Adverse Effect” contained in the Acquisition Agreement or any change or waiver of the condition precedent set forth in Section 9.2(a) of the Acquisition Agreement (as it relates to the representation Section 5.6(a) of the Acquisition Agreement) of the Acquisition Agreement, shall be deemed to be materially adverse to the Lenders and shall require the consent of each Lead Arranger, (B) a reduction in the purchase price under the Acquisition Agreement shall be deemed not to be materially adverse so long as it is allocated (1) first, to a reduction in the Equity Contribution until the Equity Contribution shall equal the Minimum Equity Contribution and (2) thereafter, (x) 70.0% to reduce the Term Loan Commitments and the commitments under the Second Lien Credit Agreement (on a pro rata basis) dollar for dollar and (y) 30.0% to the Equity Contribution and (C) any change to the terms of the Acquisition Agreement that increases the cash consideration required to be paid by the Borrower thereunder shall not be deemed to be materially adverse if such increase is funded with an increase in the aggregate amount of the Equity Contribution.
(d) The Second Lien Credit Documents required by the terms of the Second Lien Credit Agreement to be executed on the Closing Date, shall have been duly executed and delivered by each Loan Party thereto, shall be in full force and effect and shall be on terms as substantially provided for in the Commitment Letter or otherwise reasonably satisfactory to each Lead Arranger and the Administrative Agent Arrangers shall have received a certified copy of the executed Second Lien Credit Agreement. Prior to or substantially simultaneously with the initial Borrowing on the Closing Date, the Borrower Annual Financial Statements.
(i) The Arrangers shall have received at least $760,000,000 in gross cash proceeds from the Second Lien Term Loan.
five (e5) The Closing Date Refinancing shall have been consummated prior to or substantially concurrently with the Acquisition.
(f) The Lenders shall have received at least three (3) Business Days days prior to the Closing Date all documentation and other information about the Loan Parties reasonably requested in writing by them at least ten (10) Business Days prior to the Closing Date in order to allow the Arrangers and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(gii) At least five days prior to the Closing Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation then it shall deliver a Beneficial Ownership Certification in relation to such Borrower.
(f) The Acquisition Agreement Representations representations and warranties of the Specified Representations Borrower and each other Loan Party contained in Article V or any other Loan Document shall be true and correct in all material respects (or, if qualified by “materiality,” “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Closing Date; provided that, to the extent that any Acquisition Agreement Representation such representations and warranties specifically refers refer to an earlier date, it they shall be true and correct in all material respects as of such earlier date; provided provided, further that, any representation and warranty that a failure of any Acquisition Agreement Representation 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) No Default or Event of Default shall not (i) exist, or would result in a failure from the Borrowing of the condition to the initial availability of the Facilities Loans on the Closing Date or (ii) result from the application of the proceeds therefrom. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Default or Event of Default, unless, in each case, Lender unless the Administrative Agent shall have received notice from such failure results in a failure of a condition precedent Lender prior to the Borrower’s (or any Affiliates’) obligation to consummate the Acquisition pursuant to the terms of the Acquisition Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions to Initial Borrowing. The obligation of each Lender to extend credit fund a Borrowing hereunder, or to the Borrower and of the Issuing Bank to issue Letters of Credit hereunder continue its loans hereunder, on the Closing Date is subject to the satisfaction prior to (or substantially simultaneously with) the consummation of the Acquisition of, or due waiver in accordance with Section 11.01 of, each of the following conditions precedent, except as otherwise agreed between among the Borrower Parent and the Administrative Agent or otherwise set forth on Schedule 6.16Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals, facsimiles or copies in.pdf format ) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (including each Person becoming a Loan Party as a result of the ATC Acquisition or the Thixoforming Acquisition) each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) a Committed Loan Notice, which must be delivered at least (A) three (3) Business Days Business Days prior to Notice in accordance with the Closing Date if the Borrowing on the Closing Date will be of Eurodollar Rate Loans or (B) one (1) Business Day prior to the Closing Date if the Borrowing on the Closing Date will be of Base Rate Loansrequirements hereof;
(ii) executed counterparts of this Agreement and the GuarantyAgreement;
(iii) a Note executed by each Borrower in favor of each Lender that has requested a Note at least one (1) Business Day in advance of the Closing Date;
(iv) subject to Section 6.17, each Collateral Document set forth on Schedule 4.01(a)(iii) required to be executed delivered hereunder on the Closing Date as indicated on such scheduleDate, duly executed by each Loan Party that is a party thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(Bv) a duly executed Perfection Certificate duly executed by each with respect to all Loan Party; and
(C) to the extent required under the Collateral and Guarantee Requirement, evidence that all other actions, recordings and filings required shall have been taken, completed or otherwise provided thereunderParties;
(ivvi) such certificates of good standing from the applicable secretary of state of the state of organization of each Loan PartyParty (including each Person becoming a Loan Party as a result of the ATC Acquisition or the Thixoforming Acquisition), certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party such Person as the Administrative Agent may reasonably require attaching and certifying to the Organization Documents of each such Person and 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 Person is a party or is to be a party on the Closing Date and, in the case of the Borrower including certification by a Responsible Officer of the Borrower that (x) the documents referred to in clause Date;
(vii) below are in full force evidence that all other actions, recordings and filings that the Administrative Agent and the Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement (after giving effect as of to the Closing Date ATC Acquisition and (ythe Thixoforming Acquisition) the conditions specified in clauses (c) and (h) below shall have been satisfied (it being acknowledged that the conditions specified taken, completed or otherwise provided for in this Section 4.01(a)(iv) shall be deemed satisfied a manner reasonably satisfactory to the extent such documents are delivered substantially simultaneously with the consummation of the Acquisition)Administrative Agent, in each case except for actions required to be taken under Section 6.17;
(vviii) an opinion from ▇▇▇▇▇▇ legal opinions of Wuersch & ▇▇G▇▇▇▇▇ LLP, special New York counsel to the Loan Parties, and such local counsel as the Administrative Agent may reasonably require, each in form and substance reasonably satisfactory to the Administrative Agent, dated the Closing Date, and addressed to the Administrative Agent, the Collateral Agent, and the Lenders;
(viix) a solvency certificate from the chief financial officer of the Borrower Parent (after giving effect to the TransactionsTransaction) substantially in the form attached hereto as Exhibit IH;
(viix) certified copies all required financing statements under the Uniform Commercial Code in form and substance satisfactory to the Administrative Agent;
(xi) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and all premiums thereon paid and that the Collateral Agent has been named as lender loss payee and/or additional insured, as applicable, under each appropriate insurance policy to the extent required hereunder; and
(xii) a certificate from the chief financial officer of the Parent certifying that (the Total Leverage Ratio as at and for such period is not greater than 2.75:1.00, together with reasonably detailed calculations and giving Pro Forma Effect to the Transactions.
(b) All fees and expenses required to be paid hereunder (to the extent invoiced prior to the Closing Date) shall have been paid in full in cash (or arrangements satisfactory to the Administrative Agent shall have been made for payment of such amounts immediately upon the making of the initial Loans hereunder).
(c) Simultaneously with the execution of this Agreement, each of the ATC Acquisition and the Thixoforming Acquisition shall be consummated in accordance with applicable law and in accordance in all material respects with the ATC Acquisition Agreement and the schedules Thixoforming Acquisition Agreement and exhibits thereto, duly executed by other agreements related thereto (all of which must be reasonably satisfactory to the parties thereto;Arranger) without waiver or modification of any provision of the ATC Acquisition Agreement or the Thixoforming Acquisition Agreement or other agreement in any material respect that would have a material adverse effect on the Lenders without the prior written consent of the Administrative Agent.
(viiid) The Administrative Agent shall have received true and correct copies of a recent Lien, tax and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties to the extent requested by the Administrative Agent no less than thirty (30) days prior to the Closing Date; and
(ix) customary payoff letters (to the extent delivered by the Company on the Closing Date) reflecting the amounts required to fully repay all outstanding Indebtedness and providing for the termination of all commitments under the Existing Credit Agreements and, subject to the receipt of the specified repayment amounts, the release of all liens, if any, in connection therewith; provided, however, that, including each of the requirements set forth in clause (iii) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Borrowing on the Closing Date after the Borrower’s use of commercially reasonable efforts to provide such items on or prior to the Closing Date if the Borrower agrees to deliver, or cause to be delivered, such documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Closing Date (subject to extensions approved by the Administrative Agent in its reasonable discretion); provided, further, that with respect to the requirements set forth in clauses (ii), (iii) and (iv) above, above, each document or instrument required to be executed by Person becoming a Loan Party as a result of the ATC Acquisition or the Thixoforming Acquisition) and such Lien searches shall reveal no Liens (including any liens relating to any supplier contracts) other than Holdings or the Borrower (a “Post-Closing Loan Party”), such execution shall not be a condition to the funding of the Facilities and such Post-Closing Loan Party shall execute and deliver such Loan Documents after consummation of the Acquisition, but no later than 5:00 p.m., New York City time, on the Closing DatePermitted Liens.
(be) All fees and expenses required to be paid hereunder on the Closing Date (and all fees and expenses required to be paid under the Commitment Letter and the Fee Letter on the Closing Date) and, with respect to expenses and legal fees, Immediately after giving effect to the extent invoiced in reasonable detail at least two (2) Business Days before the Closing Date (except as otherwise reasonably agreed to by the Borrower) shall have been paid in full in cash.
(c) Prior to or Transactions and substantially simultaneously with the initial Borrowing on the Closing Date, (i) all principal, premium, if any, interest, fees and other amounts due or outstanding under each of the Equity Contribution Existing Loan Agreement, the Convertible Note Documentation and all documents evidencing Indebtedness of ATC or Thixoforming and all documentation evidencing or issued in connection therewith shall have been consummated; and (ii) the Acquisition shall be consummated paid in accordance with the terms of the Acquisition Agreement (without giving effect to any amendments or waivers thereto since June 14, 2014 that are materially adverse to the Lenders without the consent of each Lead Arranger, such consent not to be unreasonably withheld, conditioned or delayed); provided that (A) any material change to the definition of “Material Adverse Effect” contained in the Acquisition Agreement or any change or waiver of the condition precedent set forth in Section 9.2(a) of the Acquisition Agreement (as it relates to the representation Section 5.6(a) of the Acquisition Agreement) of the Acquisition Agreement, shall be deemed to be materially adverse to the Lenders and shall require the consent of each Lead Arranger, (B) a reduction in the purchase price under the Acquisition Agreement shall be deemed not to be materially adverse so long as it is allocated (1) first, to a reduction in the Equity Contribution until the Equity Contribution shall equal the Minimum Equity Contribution and (2) thereafter, (x) 70.0% to reduce the Term Loan Commitments full and the commitments under the Second Lien Credit Agreement (on a pro rata basis) dollar for dollar thereunder terminated and (y) 30.0% to the Equity Contribution all guarantees and (C) any change to the terms of the Acquisition Agreement that increases the cash consideration required to be paid by the Borrower thereunder shall not be deemed to be materially adverse if such increase is funded with an increase security in the aggregate amount of the Equity Contribution.
(d) The Second Lien Credit Documents required by the terms of the Second Lien Credit Agreement to be executed on the Closing Datesupport thereof discharged and released, shall have been duly executed and delivered by each Loan Party thereto, shall be in full force and effect and shall be on terms as substantially provided for in the Commitment Letter or otherwise reasonably satisfactory to each Lead Arranger and the Administrative Agent shall have received a certified copy of reasonably satisfactory evidence thereof, and (ii) the executed Second Lien Credit Agreement. Prior Parent and its Subsidiaries (after giving effect to or substantially simultaneously with the initial Borrowing on ATC Acquisition and the Closing Date, the Borrower Thixoforming Acquisition) shall have received at least outstanding no Indebtedness for borrowed money or preferred Equity Interests other than (A) the Loans and (B) up to $760,000,000 in gross cash proceeds from 100,000 of Indebtedness permitted by Section 7.03(f) and (ii) the Second Lien Term Loan.
(e) The Closing Date Refinancing Borrowers shall have been consummated prior outstanding no Equity Interests (or securities convertible into or exchangeable for Equity Interests or rights or options to or substantially concurrently with acquire Equity Interests) other than membership interests owned by the AcquisitionParent.
(f) The Lenders Administrative Agent shall have received a notice setting forth the deposit account or accounts of the Borrowers maintained at RBSC (the “Funding Account”) to which the Lender is authorized by the Borrowers to transfer the proceeds of any Borrowings requested or authorized pursuant to this Agreement.
(g) The Administrative Agent shall have received the Annual Financial Statements, the Quarterly Financial Statements, the ATC Financial Statements and the Thixoforming Financial Statements.
(h) The Administrative Agent shall have received the Pro Forma Financial Statements, together with a statement of sources and uses for the Transaction.
(i) The Administrative Agent shall have received at least three two (32) Business Days prior to the Closing Date all documentation and other information about the Loan Parties reasonably requested in writing by them at least ten (10) Business Days prior to the Closing Date it reasonably in advance of such date in order to allow the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(gj) The Acquisition Agreement Representations Administrative Agent shall be reasonably satisfied with the results of its due diligence, including the results of real estate and equipment appraisals and any environmental due diligence reasonably requested by the Administrative Agent.
(k) Since June 30, 2013, there shall not have occurred a Material Adverse Effect and since December 31, 2013, there shall not have occurred an ATC Material Adverse Effect or a Thixoforming Material Adverse Effect.
(l) The Administrative Agent shall have received a certificate of a Responsible Officer of the Parent that, on the Closing Date, the Parent has heretofore delivered to the Administrative Agent true and complete copies of all Material Contracts (including all amendments thereto) and that all such Material Contracts are in full force and effect and no material breach or default exists thereunder (which shall include, without limitation, any breach or default which could reasonably be expected to result in a termination of such Material Contract).
(m) There shall not exist any claim, action, suit, investigation, insolvency, injunction, litigation or proceeding (including, without limitation, member or derivative litigation) which is pending or threatened in any court or before any arbitrator or governmental authority which relates to the transactions contemplated hereby or which, in the opinion of the Administrative Agent, has any reasonable likelihood of having a Material Adverse Effect, an ATC Material Adverse Effect or a Thixoforming Material Adverse Effect.
(n) All governmental and third party approvals and licenses (including any necessary equityholder approvals and approvals of the holders of any Indebtedness) necessary or, in the reasonable discretion of the Administrative Agent, advisable in connection with the Transaction and the Specified Representations continuing operations of the Borrowers and their Subsidiaries shall have been obtained and be in full force and effect and all applicable waiting periods shall have expired without any action being taken or threatened by any competent Governmental Authority that would restrain, prevent or otherwise impose adverse conditions on the Transaction, and a certificate of the Parent’s Responsible Officer either (i) attaching copies of all such or any part thereof consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrowers and the validity against the Borrowers of each Loan Document to which it is a party, and such consents, licenses and approvals shall be true in full force and correct effect, or (ii) stating that no such consents, licenses or approvals are so required.
(o) The Administrative Agent shall have received a certificate from a Responsible Officer of the Parent confirming the accuracy of the representations and warranties in the Loan Documents in all material respects (or, if qualified by “materiality,” “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Closing Date; provided that, to the extent that any Acquisition Agreement Representation specifically refers to an earlier date, it shall be true and correct in all material respects as of such earlier date; provided further that a failure absence of any Acquisition Agreement Representation to be true and correct shall not (i) result in a failure of the condition to the initial availability of the Facilities on the Closing Date or (ii) result in a Default or Event of DefaultDefault on the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 9.03, unlessfor purposes of determining compliance with the conditions specified in this Section 4.01, in each caseLender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such failure results in a failure of a condition precedent Lender prior to the Borrower’s (or any Affiliates’) obligation to consummate the Acquisition pursuant to the terms of the Acquisition Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions to Initial Borrowing. The obligation of each Lender to extend credit to the Borrower and of the Issuing Bank to issue Letters of Credit make a Borrowing hereunder on the Closing Date is subject to the satisfaction prior to (or substantially simultaneously with) the consummation of the Acquisition of, or due waiver in accordance with Section 11.01 of, each of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent or as otherwise set forth in Section 6.16 and on Schedule 6.161.01A:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals, facsimiles or copies in.pdf format ) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of (x) this Agreement from the Borrower and Holdings and (y) a Committed Loan Notice, which must be delivered at least (A) three (3) Business Days Business Days prior consent and reaffirmation from each Subsidiary Guarantor in form and substance reasonably satisfactory to the Closing Date if the Borrowing on the Closing Date will be of Eurodollar Rate Loans or (B) one (1) Business Day prior to the Closing Date if the Borrowing on the Closing Date will be of Base Rate LoansAdministrative Agent;
(ii) a Note executed counterparts by the Borrower in favor of this Agreement and each Lender that has requested a Note at least two (2) Business Days in advance of the GuarantyClosing Date;
(iii) each Collateral Document set forth on Schedule 4.01(a)(iii) required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party that is a party thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blankblank (it being agreed that this condition has been satisfied by delivery of the Pledged Equity and related stock powers previously delivered to the Collateral Agent pursuant to the Existing Credit Agreement);
(Biv) a Perfection Certificate duly executed by each Loan Party; and
(C) to the extent required under the Collateral and Guarantee Requirement, evidence that all other actions, recordings and filings required that the Administrative Agent and the Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided thereunderfor in a manner reasonably satisfactory to the Administrative Agent;
(ivv) such certificates of good standing from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, 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 and, in the case of the Borrower including certification by a Responsible Officer of the Borrower that (x) the documents referred to in clause (vii) below are in full force and effect as of the Closing Date and (y) the conditions specified in clauses (c) and (h) below have been satisfied (it being acknowledged that the conditions specified in this Section 4.01(a)(iv) shall be deemed satisfied to the extent such documents are delivered substantially simultaneously with the consummation of the Acquisition)Date;
(vvi) an opinion from ▇▇▇▇▇▇ Ropes & ▇▇▇▇G▇▇▇ LLP, special New York counsel to the Loan PartiesParties substantially in the form of Exhibit G;
(vivii) a solvency certificate from the chief financial officer of the Borrower (after giving effect to the TransactionsTransaction) substantially in the form attached hereto as Exhibit I;
(vii) certified copies of the Acquisition Agreement and the schedules and exhibits thereto, duly executed by the parties theretoK;
(viii) evidence that all insurance (including title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent shall have requested to be so named, including (i) standard flood hazard determination forms with respect to each Mortgaged Property and, (ii) if any Mortgaged Property is located in a special flood hazard area, (x) notices to (and confirmations of receipt by) the Borrower as to the existence of a special flood hazard and, if applicable, the unavailability of flood hazard insurance under the National Flood Insurance Program and (y) evidence of applicable flood insurance, if available, in each case in such form, on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994 or as otherwise required by the Administrative Agent; and
(ix) copies of a recent Lien, tax Lien and judgment search searches in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties to the extent requested by the Administrative Agent no less than thirty (30) days prior to the Closing Date; and
(ix) customary payoff letters (to the extent delivered by the Company on the Closing Date) reflecting the amounts required to fully repay all outstanding Indebtedness and providing for the termination of all commitments under the Existing Credit Agreements and, subject to the receipt of the specified repayment amounts, the release of all liens, if any, in connection therewith; provided, however, that, each of the requirements set forth in clause (iii) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Borrowing on the Closing Date after the Borrower’s use of commercially reasonable efforts to provide such items on or prior to the Closing Date if the Borrower agrees to deliver, or cause to be delivered, such documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Closing Date (subject to extensions approved by the Administrative Agent in its reasonable discretion); provided, further, that with respect to the requirements set forth in clauses (ii), (iii) and (iv) above, above, each document or instrument required to be executed by a Loan Party other than Holdings or the Borrower (a “Post-Closing Loan Party”), such execution shall not be a condition to the funding of the Facilities and such Post-Closing Loan Party shall execute and deliver such Loan Documents after consummation of the Acquisition, but no later than 5:00 p.m., New York City time, on the Closing Date.Parties;
(b) All fees and expenses required to be paid hereunder on the Closing Date (and all fees and expenses required to be paid under the Commitment Letter and the Fee Letter on the Closing Date) and, with respect to expenses and legal fees, to the extent invoiced in reasonable detail at least two (2) Business Days before the Closing Date (except as otherwise reasonably agreed to by the Borrower) shall have been paid in full in cash.
(c) Prior to or substantially simultaneously with the initial Borrowing Borrowings on the Closing Date, (i) the Equity Contribution Borrower shall have been consummated; executed and (ii) delivered an amendment to the Acquisition shall be consummated ABL Credit Agreement to the ABL Administrative Agent, in accordance with form and substance reasonably satisfactory to the terms Administrative Agent, permitting, among other things, the incurrence of the Acquisition Agreement (without giving effect to any amendments or waivers thereto since June 14, 2014 that are materially adverse to the Lenders without the consent of each Lead Arranger, such consent not to be unreasonably withheld, conditioned or delayed); provided that (A) any material change to the definition of “Material Adverse Effect” contained in the Acquisition Agreement or any change or waiver of the condition precedent set forth in Section 9.2(a) of the Acquisition Agreement (as it relates to the representation Section 5.6(a) of the Acquisition Agreement) of the Acquisition Agreement, shall be deemed to be materially adverse to the Lenders and shall require the consent of each Lead Arranger, (B) a reduction in the purchase price under the Acquisition Agreement shall be deemed not to be materially adverse so long as it is allocated (1) first, to a reduction in the Equity Contribution until the Equity Contribution shall equal the Minimum Equity Contribution and (2) thereafter, (x) 70.0% to reduce the Term Loan Commitments and the commitments under the Second Lien Credit Agreement (on a pro rata basis) dollar for dollar and (y) 30.0% to the Equity Contribution and (C) any change to the terms of the Acquisition Agreement that increases the cash consideration required to be paid by the Borrower thereunder shall not be deemed to be materially adverse if such increase is funded with an increase in the aggregate amount of the Equity ContributionInitial Loans hereunder.
(d) The Second Lien Credit Documents required by the terms of the Second Lien Credit Agreement to be executed on the Closing Date, shall have been duly executed and delivered by each Loan Party thereto, shall be in full force and effect and shall be on terms as substantially provided for in the Commitment Letter or otherwise reasonably satisfactory to each Lead Arranger and the Administrative Agent shall have received a certified copy of the executed Second Lien Credit Agreement. Prior to or substantially simultaneously with the initial Borrowing on the Closing Date, the Borrower shall have received at least $760,000,000 in gross cash proceeds from taken all other necessary actions such that, after giving effect to the Second Lien Term LoanTransaction, (i) Holdings, the Borrower and the Restricted Subsidiaries shall have outstanding no material Indebtedness for borrowed money or preferred Equity Interests other than Indebtedness permitted by Section 7.03 and (ii) the Borrower shall have outstanding no Equity Interests (or securities convertible into or exchangeable for Equity Interests or rights or options to acquire Equity Interests) other than common stock owned by Holdings.
(e) The Closing Date Refinancing Arrangers shall have been consummated prior to or substantially concurrently with received (i) the AcquisitionAnnual Financial Statements and (ii) the Quarterly Financial Statements.
(f) The Lenders Arrangers shall have received at least three five (35) Business Days days prior to the Closing Date all documentation and other information about the Loan Parties reasonably requested in writing by them at least ten (10) Business Days prior to the Closing Date in order to allow the Arrangers and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(g) The Acquisition Agreement Representations and the Specified Representations Since February 2, 2013, there shall not have been any effect, change, event or occurrence that has had or would reasonably be true and correct in all material respects (or, if qualified by “materiality,” “expected to have a Material Adverse Effect” .
(h) The Refinancing shall have been consummated or similar language, in all respects (after giving effect to such qualification)) on and as of shall be consummated substantially concurrently with the Closing Date; provided that. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the extent that any Acquisition Agreement Representation specifically refers to an earlier date, it shall be true and correct in all material respects as of such earlier date; provided further that a failure of any Acquisition Agreement Representation to be true and correct shall not (i) result in a failure of the condition to the initial availability of the Facilities on the proposed Closing Date or (ii) result in a Default or Event of Default, unless, in each case, such failure results in a failure of a condition precedent to the Borrower’s (or any Affiliates’) obligation to consummate the Acquisition pursuant to the terms of the Acquisition Agreementspecifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (J Crew Group Inc)
Conditions to Initial Borrowing. The obligations of the Lenders (including the Swingline Lender) to make Loans and the obligation of each Lender to extend credit to the Borrower and of the Issuing Bank to issue Letters any Letter of Credit hereunder shall not become effective until the date on the Closing Date is subject to the satisfaction prior to (or substantially simultaneously with) the consummation of the Acquisition of, or due waiver in accordance with Section 11.01 of, which each of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent is satisfied (or otherwise set forth on Schedule 6.16:waived in accordance with Section 10.2).
(a) The Administrative Agent’s receipt of the following, each of which Agent shall be originals, facsimiles have received all fees and other amounts due and payable on or copies in.pdf format unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party:
(i) a Committed Loan Notice, which must be delivered at least (A) three (3) Business Days Business Days prior to the Closing Date if the Borrowing on the Closing Date will be Date, including reimbursement or payment of Eurodollar Rate Loans or all reasonable out-of-pocket expenses (B) one (1) Business Day prior including reasonable fees, charges and disbursements of counsel to the Closing Date if the Borrowing on the Closing Date will be of Base Rate Loans;
(ii) executed counterparts of this Agreement and the Guaranty;
(iii) each Collateral Document set forth on Schedule 4.01(a)(iiiAdministrative Agent) required to be executed on reimbursed or paid by the Closing Date as indicated on such scheduleBorrower hereunder, duly executed by each Loan Party that is a party thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) a Perfection Certificate duly executed by each Loan Party; and
(C) to the extent required under the Collateral and Guarantee Requirement, evidence that all other actions, recordings and filings required shall have been taken, completed or otherwise provided thereunder;
(iv) such certificates of good standing from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party 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 any other Loan Documents to which such Loan Party is a party or is to be a party on the Closing Date and, in the case of the Borrower including certification by a Responsible Officer of the Borrower that (x) the documents referred to in clause (vii) below are in full force Document and effect as of the Closing Date and (y) the conditions specified in clauses (c) and (h) below have been satisfied (it being acknowledged that the conditions specified in this Section 4.01(a)(iv) shall be deemed satisfied to the extent such documents are delivered substantially simultaneously under any agreement with the consummation of the Acquisition);
(v) an opinion from ▇▇▇Administrative Agent or SunTrust Robinson Humphrey, Inc., as Arranger for wh▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special New York counsel (▇▇▇luding estimated expenses) have been presented to the Loan Parties;
(vi) a solvency certificate from the chief financial officer of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit I;
(vii) certified copies of the Acquisition Agreement and the schedules and exhibits thereto, duly executed by the parties thereto;
(viii) copies of a recent Lien, tax and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties to the extent requested by the Administrative Agent no less than thirty (30) days prior to the Closing Date; and
(ix) customary payoff letters (to the extent delivered by the Company on the Closing Date) reflecting the amounts required to fully repay all outstanding Indebtedness and providing for the termination of all commitments under the Existing Credit Agreements and, subject to the receipt of the specified repayment amounts, the release of all liens, if any, in connection therewith; provided, however, that, each of the requirements set forth in clause (iii) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Borrowing on the Closing Date after the Borrower’s use of commercially reasonable efforts to provide such items on or prior to the Closing Date if the Borrower agrees to deliver, or cause to be delivered, such documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Closing Date (subject to extensions approved by the Administrative Agent in its reasonable discretion); provided, further, that with respect to the requirements set forth in clauses (ii), (iii) and (iv) above, above, each document or instrument required to be executed by a Loan Party other than Holdings or the Borrower (a “Post-Closing Loan Party”), such execution shall not be a condition to the funding of the Facilities and such Post-Closing Loan Party shall execute and deliver such Loan Documents after consummation of the Acquisition, but no later than 5:00 p.m., New York City time, on 2 days before the Closing Date.
(b) All fees The Administrative Agent or the Administrative Agent (or their counsel) shall have received the following:
(i) a counterpart of this Agreement signed by or on behalf of each party hereto;
(ii) duly executed Revolving Credit Notes and expenses required Term Notes payable to be paid hereunder on those Lenders requesting the Closing Date same and the Swingline Note payable to the Swingline Lender;
(iii) the Subsidiary Guaranty Agreement duly executed by each Guarantor;
(iv) the Pledge Agreement duly executed by the Borrower and all fees each Guarantor, together with (i) original stock certificates evidencing the issued and expenses required outstanding shares of Capital Stock pledged to be paid the Administrative Agent to the Pledge Agreement, and (ii) stock powers or other appropriate instruments of transfer executed in blank;
(v) the Security Agreement duly executed by the Borrower and each Guarantor, together with (i) UCC financing statements and other applicable documents under the Commitment Letter and laws of the Fee Letter on the Closing Date) and, jurisdictions with respect to expenses the perfection of the Liens granted under the Security Agreement, as required in order to perfect such Liens if not previously recorded, (ii) copies of UCC, tax, and judgment search reports in all necessary or appropriate jurisdictions and under all legal feesand trade names of the Loan Parties requested by the Lenders, to indicating that there are no prior Liens on any of the extent invoiced Collateral other than Permitted Liens, (iii) a Perfection Certificate duly completed and executed by the Loan Parties, and (iv) duly executed Copyright Security Agreements, Patent Security Agreements and Trademark Security Agreements, if applicable.
(vi) certificates of insurance issued by Borrower’s broker on behalf of insurers of the Borrower and all Subsidiaries, describing in reasonable detail at least two the types and amounts of insurance (2property and liability, and flood insurance where applicable) Business Days before the Closing Date (except as otherwise reasonably agreed to maintained by the Borrower) shall have been paid in full in cash.Borrower and all Subsidiaries, naming the Administrative Agent as additional insured and/or loss payee, as appropriate;
(cvii) Prior receipt and review, reasonably satisfactory to or substantially simultaneously with the initial Borrowing on the Closing Date, Lenders of (i) the Equity Contribution shall have been consummated; annual audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal years ended March 31, 2009 and March 31, 2010, including balance sheets, income and cash flow statements audited by independent public accountants of recognized national standing and prepared in conformity with GAAP, (ii) the Acquisition shall be consummated in accordance consolidated financial statements of Borrower and its Subsidiaries for the fiscal quarter ended June 30, 2010, (iii) revisions to the five year projections for the Borrower and its Subsidiaries previously provided, (iv) and such other financial information with respect to the terms Borrower or its Subsidiaries as the Administrative Agent may reasonably request;
(viii) a certificate of the Acquisition Agreement Secretary or Assistant Secretary of each Loan Party attaching and certifying copies of its bylaws and of the resolutions of its boards of directors, or partnership agreement or limited liability company agreement, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Loan Documents to which it is a party and certifying the name, title and true signature of each officer of such Loan Party executing the Loan Documents to which it is a party;
(without giving effect to any amendments or waivers thereto since June 14, 2014 that are materially adverse ix) to the Lenders without extent not delivered under clause (viii) certified copies of the consent articles or certificate of incorporation, certificate of organization or limited partnership, or other registered organizational documents of each Lead ArrangerLoan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of such consent not Loan Party and each other jurisdiction where such Loan Party is required to be unreasonably withheld, conditioned or delayed); provided that (A) any material change qualified to do business as a foreign corporation where the definition of “failure to be so qualified could reasonably be expected to have a Material Adverse Effect” contained in ;
(x) a favorable written opinion of Baker Botts LLP, and local counsel to the Acquisition Agreement or any change or waiver L▇▇▇ ▇a▇▇▇▇▇ and/or their Subsidiaries, addressed to the Administrative Agent and each of the condition precedent Lenders, and covering such matters relating to the Loan Parties, the Loan Documents and the transactions contemplated therein as the Administrative Agent or the Required Lenders shall reasonably request, including, without limitation, a no conflicts opinion with respect to other material agreements;
(xi) Evidence reasonably satisfactory to the Administrative Agent as to the absence of any default or event of default existing under the 2013 Senior Notes, the 2017 Senior Notes or the 2038 Senior Convertible Notes;
(xii) a certificate dated the Closing Date and signed by a Responsible Officer, certifying that (x) no Default or Event of Default exists, (y) all representations and warranties of each Loan Party set forth in Section 9.2(athe Loan Documents are true and correct in all material respects. except the extent limited to an earlier date and (z) since the date of the Acquisition Agreement (as it relates to the representation Section 5.6(a) financial statements of the Acquisition AgreementBorrower described in Section 4.4, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(xiii) a duly executed Notice of Borrowing;
(xiv) if applicable, a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the Acquisition Agreementproceeds hereof;
(xv) certified copies of all consents, shall be deemed to be materially adverse to the Lenders approvals, authorizations, registrations and shall require the consent of each Lead Arranger, (B) a reduction in the purchase price under the Acquisition Agreement shall be deemed not to be materially adverse so long as it is allocated (1) first, to a reduction in the Equity Contribution until the Equity Contribution shall equal the Minimum Equity Contribution filings and (2) thereafter, (x) 70.0% to reduce the Term Loan Commitments and the commitments under the Second Lien Credit Agreement (on a pro rata basis) dollar for dollar and (y) 30.0% to the Equity Contribution and (C) any change to the terms of the Acquisition Agreement that increases the cash consideration orders required to be paid made or obtained under any Requirement of Law, or by any Contractual Obligation of each Loan Party, in connection with the Borrower thereunder shall not be deemed to be materially adverse if such increase is funded with an increase in the aggregate amount execution, delivery, performance, validity and enforceability of the Equity Contribution.
(d) The Second Lien Credit Loan Documents required by the terms or any of the Second Lien Credit Agreement to be executed on the Closing Datetransactions contemplated thereby, shall have been duly executed and delivered by each Loan Party theretosuch consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be on ongoing;
(xvi) a duly completed and executed certificate of the type described in Section 5.1(c) including calculations of the financial covenants set forth in Article VI hereof as of June 30, 2010; and
(xvii) certified copies of all agreements, indentures or notes governing the terms as substantially provided for of any Material Indebtedness and all other material agreements, documents and instruments to which any Loan Party or any of its assets are bound.
(c) No action, suit, investigation or proceeding shall be pending or threatened in any court or before any arbitrator, governmental authority, the Commitment Letter Department of Justice, or otherwise the Securities and Exchange Commission that could reasonably satisfactory be expected to each Lead Arranger and the have a Material Adverse Effect.
(d) The Administrative Agent shall have received a certified copy of completed its due diligence, with results reasonably satisfactory to the executed Second Lien Credit Agreement. Prior Administrative Agent, with respect to any pending Securities and Exchange Commission or substantially simultaneously with the initial Borrowing other governmental investigations or inquiries existing on the Closing Date, the Borrower shall have received at least $760,000,000 in gross cash proceeds from the Second Lien Term Loan.
(e) The Closing Date Refinancing shall have been consummated prior to or substantially concurrently with the Acquisition.
(f) The Lenders shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Loan Parties reasonably requested in writing by them at least ten (10) Business Days prior to the Closing Date in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(g) The Acquisition Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality,” “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Closing Date; provided that, to the extent that any Acquisition Agreement Representation specifically refers to an earlier date, it shall be true and correct in all material respects as of such earlier date; provided further that a failure of any Acquisition Agreement Representation to be true and correct shall not (i) result in a failure of the condition to the initial availability of the Facilities on the Closing Date or (ii) result in a Default or Event of Default, unless, in each case, such failure results in a failure of a condition precedent to the Borrower’s (or any Affiliates’) obligation to consummate the Acquisition pursuant to the terms of the Acquisition Agreement.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Bristow Group Inc)
Conditions to Initial Borrowing. The obligation of each Lender to extend credit to the Borrower and of the Issuing Bank to issue Letters of Credit make a Borrowing hereunder on the Closing Date is subject to the satisfaction prior to (or substantially simultaneously with) the consummation of the Acquisition of, or due waiver in accordance with Section 11.01 of, each of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent or as otherwise set forth in Section 6.16 and on Schedule 6.161.01A:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by originals, facsimiles or copies in.pdf format ) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of (x) this Agreement from the Borrower and Holdings and (y) a Committed Loan Notice, which must be delivered at least (A) three (3) Business Days Business Days prior consent and reaffirmation from each Subsidiary Guarantor in form and substance reasonably satisfactory to the Closing Date if the Borrowing on the Closing Date will be of Eurodollar Rate Loans or (B) one (1) Business Day prior to the Closing Date if the Borrowing on the Closing Date will be of Base Rate LoansAdministrative Agent;
(ii) a Note executed counterparts by the Borrower in favor of this Agreement and each Lender that has requested a Note at least two (2) Business Days in advance of the GuarantyClosing Date;
(iii) each Collateral Document set forth on Schedule 4.01(a)(iii) required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party that is a party thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blankblank (it being agreed that this condition has been satisfied by delivery of the Pledged Equity and related stock powers previously delivered to the Collateral Agent pursuant to the Existing Credit Agreement);
(Biv) a Perfection Certificate duly executed by each Loan Party; and
(C) to the extent required under the Collateral and Guarantee Requirement, evidence that all other actions, recordings and filings required that the Administrative Agent and the Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided thereunderfor in a manner reasonably satisfactory to the Administrative Agent;
(ivv) such certificates of good standing from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, 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 and, in the case of the Borrower including certification by a Responsible Officer of the Borrower that (x) the documents referred to in clause (vii) below are in full force and effect as of the Closing Date and (y) the conditions specified in clauses (c) and (h) below have been satisfied (it being acknowledged that the conditions specified in this Section 4.01(a)(iv) shall be deemed satisfied to the extent such documents are delivered substantially simultaneously with the consummation of the Acquisition)Date;
(vvi) an opinion from ▇▇▇▇▇▇ Ropes & ▇▇▇▇▇▇▇ LLP, special New York counsel to the Loan PartiesParties substantially in the form of Exhibit G;
(vivii) a solvency certificate from the chief financial officer of the Borrower (after giving effect to the TransactionsTransaction) substantially in the form attached hereto as Exhibit I;
(vii) certified copies of the Acquisition Agreement and the schedules and exhibits thereto, duly executed by the parties theretoK;
(viii) evidence that all insurance (including title insurance) required to be maintained pursuant to the Loan Documents has been obtained and is in effect and that the Collateral Agent has been named as loss payee and/or additional insured, as applicable, under each insurance policy with respect to such insurance as to which the Collateral Agent shall have requested to be so named, including (i) standard flood hazard determination forms with respect to each Mortgaged Property and, (ii) if any Mortgaged Property is located in a special flood hazard area, (x) notices to (and confirmations of receipt by) the Borrower as to the existence of a special flood hazard and, if applicable, the unavailability of flood hazard insurance under the National Flood Insurance Program and (y) evidence of applicable flood insurance, if available, in each case in such form, on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994 or as otherwise required by the Administrative Agent; and
(ix) copies of a recent Lien, tax Lien and judgment search searches in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties to the extent requested by the Administrative Agent no less than thirty (30) days prior to the Closing Date; and
(ix) customary payoff letters (to the extent delivered by the Company on the Closing Date) reflecting the amounts required to fully repay all outstanding Indebtedness and providing for the termination of all commitments under the Existing Credit Agreements and, subject to the receipt of the specified repayment amounts, the release of all liens, if any, in connection therewith; provided, however, that, each of the requirements set forth in clause (iii) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Borrowing on the Closing Date after the Borrower’s use of commercially reasonable efforts to provide such items on or prior to the Closing Date if the Borrower agrees to deliver, or cause to be delivered, such documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Closing Date (subject to extensions approved by the Administrative Agent in its reasonable discretion); provided, further, that with respect to the requirements set forth in clauses (ii), (iii) and (iv) above, above, each document or instrument required to be executed by a Loan Party other than Holdings or the Borrower (a “Post-Closing Loan Party”), such execution shall not be a condition to the funding of the Facilities and such Post-Closing Loan Party shall execute and deliver such Loan Documents after consummation of the Acquisition, but no later than 5:00 p.m., New York City time, on the Closing Date.Parties;
(b) All fees and expenses required to be paid hereunder on the Closing Date (and all fees and expenses required to be paid under the Commitment Letter and the Fee Letter on the Closing Date) and, with respect to expenses and legal fees, to the extent invoiced in reasonable detail at least two (2) Business Days before the Closing Date (except as otherwise reasonably agreed to by the Borrower) shall have been paid in full in cash.
(c) Prior to or substantially simultaneously with the initial Borrowing Borrowings on the Closing Date, (i) the Equity Contribution Borrower shall have been consummated; executed and (ii) delivered an amendment to the Acquisition shall be consummated ABL Credit Agreement to the ABL Administrative Agent, in accordance with form and substance reasonably satisfactory to the terms Administrative Agent, permitting, among other things, the incurrence of the Acquisition Agreement (without giving effect to any amendments or waivers thereto since June 14, 2014 that are materially adverse to the Lenders without the consent of each Lead Arranger, such consent not to be unreasonably withheld, conditioned or delayed); provided that (A) any material change to the definition of “Material Adverse Effect” contained in the Acquisition Agreement or any change or waiver of the condition precedent set forth in Section 9.2(a) of the Acquisition Agreement (as it relates to the representation Section 5.6(a) of the Acquisition Agreement) of the Acquisition Agreement, shall be deemed to be materially adverse to the Lenders and shall require the consent of each Lead Arranger, (B) a reduction in the purchase price under the Acquisition Agreement shall be deemed not to be materially adverse so long as it is allocated (1) first, to a reduction in the Equity Contribution until the Equity Contribution shall equal the Minimum Equity Contribution and (2) thereafter, (x) 70.0% to reduce the Term Loan Commitments and the commitments under the Second Lien Credit Agreement (on a pro rata basis) dollar for dollar and (y) 30.0% to the Equity Contribution and (C) any change to the terms of the Acquisition Agreement that increases the cash consideration required to be paid by the Borrower thereunder shall not be deemed to be materially adverse if such increase is funded with an increase in the aggregate amount of the Equity ContributionInitial Loans hereunder.
(d) The Second Lien Credit Documents required by the terms of the Second Lien Credit Agreement to be executed on the Closing Date, shall have been duly executed and delivered by each Loan Party thereto, shall be in full force and effect and shall be on terms as substantially provided for in the Commitment Letter or otherwise reasonably satisfactory to each Lead Arranger and the Administrative Agent shall have received a certified copy of the executed Second Lien Credit Agreement. Prior to or substantially simultaneously with the initial Borrowing on the Closing Date, the Borrower shall have received at least $760,000,000 in gross cash proceeds from taken all other necessary actions such that, after giving effect to the Second Lien Term LoanTransaction, (i) Holdings, the Borrower and the Restricted Subsidiaries shall have outstanding no material Indebtedness for borrowed money or preferred Equity Interests other than Indebtedness permitted by Section 7.03 and (ii) the Borrower shall have outstanding no Equity Interests (or securities convertible into or exchangeable for Equity Interests or rights or options to acquire Equity Interests) other than common stock owned by Holdings.
(e) The Closing Date Refinancing Arrangers shall have been consummated prior to or substantially concurrently with received (i) the AcquisitionAnnual Financial Statements and (ii) the Quarterly Financial Statements.
(f) The Lenders Arrangers shall have received at least three five (35) Business Days days prior to the Closing Date all documentation and other information about the Loan Parties reasonably requested in writing by them at least ten (10) Business Days prior to the Closing Date in order to allow the Arrangers and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(g) The Acquisition Agreement Representations and the Specified Representations Since February 2, 2013, there shall not have been any effect, change, event or occurrence that has had or would reasonably be true and correct in all material respects (or, if qualified by “materiality,” “expected to have a Material Adverse Effect” .
(h) The Refinancing shall have been consummated or similar language, in all respects (after giving effect to such qualification)) on and as of shall be consummated substantially concurrently with the Closing Date; provided that. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the extent that any Acquisition Agreement Representation specifically refers to an earlier date, it shall be true and correct in all material respects as of such earlier date; provided further that a failure of any Acquisition Agreement Representation to be true and correct shall not (i) result in a failure of the condition to the initial availability of the Facilities on the proposed Closing Date or (ii) result in a Default or Event of Default, unless, in each case, such failure results in a failure of a condition precedent to the Borrower’s (or any Affiliates’) obligation to consummate the Acquisition pursuant to the terms of the Acquisition Agreementspecifying its objection thereto.
Appears in 1 contract
Conditions to Initial Borrowing. The obligation of each Lender to extend credit to fund the Borrower and of the Issuing Bank to issue Letters of Credit initial Borrowing hereunder on the Closing Date is subject to the satisfaction prior to (or substantially simultaneously with) the consummation of the Acquisition of, or due waiver in accordance with Section 11.01 of, each of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent or otherwise set forth on Schedule 6.16:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles originals or “.pdf” copies in.pdf format or other electronic copies (followed promptly by originals if requested by the Administrative Agent) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) a Committed Loan Notice, which must be delivered at least (A) three (3) Business Days Business Days prior to Notice in accordance with the Closing Date if the Borrowing on the Closing Date will be of Eurodollar Rate Loans or (B) one (1) Business Day prior to the Closing Date if the Borrowing on the Closing Date will be of Base Rate Loansrequirements hereof;
(ii) executed counterparts of this Agreement and the GuarantyFirst Lien Intercreditor Agreement;
(iii) each Collateral Document set forth on Schedule 4.01(a)(iii) 1.01B as required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party that is a party thereto, together with, in each case, solely to the extent required by the Collateral and Guarantee Requirement:
(A) certificates, if any, representing the Pledged Equity referred to therein equity interests in the Borrower and owned by the Borrower accompanied by undated stock or membership interest powers executed in blank and instruments evidencing the Pledged Debt indorsed in blankblank (or confirmation in lieu thereof reasonably satisfactory to the Administrative Agent or its counsel that such certificates, powers and instruments have been sent for overnight delivery to the Collateral Agent or its counsel);
(B) a Perfection Certificate copies of proper financing statements, filed or duly executed by each Loan Partyprepared for filing under the Uniform Commercial Code in all United States jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens created under (1) the Security and Depositary Agreement on assets of the Borrower, covering the Collateral described in the Security and Depositary Agreement and (2) the Pledge Agreement on assets of the Parent, covering the Collateral described in the Pledge Agreement; and
(C) to the extent required under the Collateral and Guarantee Requirement, evidence that all other actions, recordings and filings required by the Collateral Documents as of the Closing Date that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided thereunderfor in a manner reasonably satisfactory to the Administrative Agent (it being understood that the Borrower hereby provides authorization to the Administrative Agent to take such actions or make such recordings and filings that can be taken or made by the Administrative Agent or the Collateral Agent and to the extent agreed to be taken or made by the Administrative Agent or Collateral Agent, such actions, recordings and filings shall be reasonably satisfactory to the Administrative Agent);
(iv) copies of a recent Lien, judgment and litigation search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties;
(v) a certificate signed by a Responsible Officer, dated as of the Closing Date, certifying that:
(A) attached to such certificate is a true and complete copy of one or more certificates of the Secretary of State of the jurisdiction of formation of each Loan Party dated reasonably near the Closing Date certifying (I) as to a true and correct copy of the certificate of formation of such Loan Party and each amendment thereto on file in such Secretary of State’s office (or its jurisdictional equivalent, as applicable) and (II) that (1) such amendments are the only amendments to such Loan Party’s constitutional documents on file in such Secretary of State’s office (or its jurisdictional equivalent, as applicable) and (2) such Loan Party is duly formed and in good standing from or presently subsisting under the laws of the applicable secretary jurisdiction of state formation;
(B) attached to such certificate is a true and complete copy of the state of organization limited liability company agreement, operating agreement, bylaws or comparable governing documents of each Loan Party;
(C) attached to such certificate is a true and complete copy of the valid resolutions relating to the authorization, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers execution and delivery of each Loan Party 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 Document to which such Loan Party is a party party; and
(D) attached to such certificate is a true and complete copy of the incumbency and signatures of the Persons authorized to execute and deliver on its behalf the Loan Documents to which it is or is to be a party on the Closing Date and, and any other documents in the case of the Borrower including certification by a Responsible Officer of the Borrower that (x) the documents referred to in clause (vii) below are in full force and effect as of the Closing Date and (y) the conditions specified in clauses (c) and (h) below have been satisfied (it being acknowledged that the conditions specified in this Section 4.01(a)(iv) shall be deemed satisfied to the extent such documents are delivered substantially simultaneously connection with the consummation of the Acquisition)transactions contemplated hereby and thereby;
(vvi) an opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel to the Loan Parties;
(vivii) a solvency certificate certificate, substantially in the form of Exhibit C-2 hereto, from the chief financial officer, chief accounting officer, manager or other officer with equivalent duties of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit I;
(vii) certified copies of the Acquisition Agreement and the schedules and exhibits thereto, duly executed by the parties thereto);
(viii) copies of a recent Liencertificate, tax and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties to the extent requested by the Administrative Agent no less than thirty (30) days prior to dated the Closing Date; and
(ix) customary payoff letters (to the extent delivered Date and signed by the Company on the Closing Date) reflecting the amounts required to fully repay all outstanding Indebtedness and providing for the termination of all commitments under the Existing Credit Agreements and, subject to the receipt a Responsible Officer of the specified repayment amountsBorrower, the release of all liens, if any, in connection therewith; provided, however, that, each confirming satisfaction of the requirements conditions set forth in clause (iii) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Borrowing on the Closing Date after the Borrower’s use of commercially reasonable efforts to provide such items on or prior to the Closing Date if the Borrower agrees to deliver, or cause to be delivered, such documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Closing Date (subject to extensions approved by the Administrative Agent in its reasonable discretion); provided, further, that with respect to the requirements set forth in clauses (iiSection 4.01(c), (iiid), (g), (m), (n), (o) and (iv) above, above, each document or instrument required to be executed by a Loan Party other than Holdings or the Borrower (a “Post-Closing Loan Party”p), such execution shall not be a condition to the funding of the Facilities and such Post-Closing Loan Party shall execute and deliver such Loan Documents after consummation of the Acquisition, but no later than 5:00 p.m., New York City time, on the Closing Date.;
(b) All fees reasonable and documented out-of-pocket expenses pursuant to the Fee Letters due to the Administrative Agent, the Collateral Agent, the Lead Arrangers and their respective Affiliates required to be paid hereunder on the Closing Date and (and all fees and expenses required to be paid under in the Commitment Letter and the Fee Letter on the Closing Datecase of expenses) and, with respect to expenses and legal fees, to the extent invoiced in reasonable detail at least two three (23) Business Days before the Closing Date (except as otherwise reasonably agreed to by the Borrower) shall have been paid in full in cashfrom the proceeds of the initial funding under the Facilities.
(c) Prior to or substantially simultaneously with the initial Borrowing on the Closing Date, (i) the Equity Contribution shall have been consummated; The representations and (ii) the Acquisition warranties of each Loan Party set forth in Article V and in each other Loan Document shall be consummated true and correct in accordance with the terms of the Acquisition Agreement all material respects (without giving effect except that any representation and warranty that is qualified as to any amendments “materiality” or waivers thereto since June 14, 2014 that are materially adverse to the Lenders without the consent of each Lead Arranger, such consent not to be unreasonably withheld, conditioned or delayed); provided that (A) any material change to the definition of “Material Adverse Effect” contained shall be true and correct in the Acquisition Agreement or any change or waiver all respects as so qualified) on and as of the condition precedent set forth in Section 9.2(a) of the Acquisition Agreement (as it relates Closing Date, except to the representation Section 5.6(a) of the Acquisition Agreement) of the Acquisition Agreementextent such representations and warranties expressly relate to an earlier date, in which case they shall be deemed true and correct in all material respects (except that any representation and warranty that is qualified as to be materially adverse to the Lenders “materiality” or “Material Adverse Effect” are true and shall require the consent correct in all respects as so qualified) as of each Lead Arranger, (B) a reduction in the purchase price under the Acquisition Agreement shall be deemed not to be materially adverse so long as it is allocated (1) first, to a reduction in the Equity Contribution until the Equity Contribution shall equal the Minimum Equity Contribution and (2) thereafter, (x) 70.0% to reduce the Term Loan Commitments and the commitments under the Second Lien Credit Agreement (on a pro rata basis) dollar for dollar and (y) 30.0% to the Equity Contribution and (C) any change to the terms of the Acquisition Agreement that increases the cash consideration required to be paid by the Borrower thereunder shall not be deemed to be materially adverse if such increase is funded with an increase in the aggregate amount of the Equity Contributionearlier date.
(d) The Second Lien Credit Documents required by the terms No Default or Event of the Second Lien Credit Agreement to Default shall exist and be executed on the Closing Date, shall have been duly executed and delivered by each Loan Party thereto, shall be in full force and effect and shall be on terms as substantially provided for in the Commitment Letter continuing or otherwise reasonably satisfactory to each Lead Arranger and the Administrative Agent shall have received a certified copy of the executed Second Lien Credit Agreement. Prior to or substantially simultaneously with would immediately result from the initial Borrowing on the Closing Date, the Borrower shall have received at least $760,000,000 in gross cash proceeds hereunder or from the Second Lien Term Loanapplication of the proceeds therefrom.
(e) The Closing Date Refinancing Administrative Agent shall have been consummated prior to or substantially concurrently with received copies of (i) a consolidated pro forma balance sheet of the AcquisitionBorrower, dated June 30, 2025 and (ii) (x) the unaudited consolidated balance sheet of the Borrower as of June 30, 2025, (y) the unaudited consolidated statement of operations of the Borrower for the quarter ended on June 30, 2025 and the portion of the fiscal year through the end of such quarter, and (z) the unaudited consolidated statement of cash flows of the Borrower for the portion of the fiscal year through the end of such quarter.
(f) The Lenders Each Lender shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Loan Parties required under applicable Anti-Money Laundering Laws, including, without limitation, applicable “know your customer” rules and the USA PATRIOT Act, that has been reasonably requested by such ▇▇▇▇▇▇ in writing by them at least ten (10) Business Days prior to the Closing Date in order Date. At least three (3) Business Days prior to comply with applicable the Closing Date, if the Borrower qualifies as a “know your legal entity customer” under the Beneficial Ownership Regulation, then the Borrower shall have delivered to the Administrative Agent a Beneficial Ownership Certification in relation to the Borrower on the form promulgated by the Loan Syndications and anti-money laundering rules and regulations, including the USA PATRIOT ActTrading Association.
(g) The Acquisition Agreement Representations and Since December 31, 2024, there shall not have been or occurred any event, change, fact, development, circumstance, condition or occurrence that has had or would, individually or in the Specified Representations shall aggregate, reasonably be true and correct in all material respects (or, if qualified by “materiality,” “expected to have a Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Closing Date; provided that, to the extent that any Acquisition Agreement Representation specifically refers to an earlier date, it shall be true and correct in all material respects as of such earlier date; provided further that a failure of any Acquisition Agreement Representation to be true and correct shall not (i) result in a failure of the condition to the initial availability of the Facilities on the Closing Date or (ii) result in a Default or Event of Default, unless, in each case, such failure results in a failure of a condition precedent to the Borrower’s (or any Affiliates’) obligation to consummate the Acquisition pursuant to the terms of the Acquisition Agreement.
Appears in 1 contract
Conditions to Initial Borrowing. The obligation of each Lender to extend credit to the Borrower and obligations of the Issuing Bank Banks to issue Letters of Credit make the initial Loans hereunder on the Closing Date is are subject to the satisfaction prior to (or substantially simultaneously with) the consummation of the Acquisition of, or due waiver in accordance with Section 11.01 of, each 9.5) of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent or otherwise set forth on Schedule 6.16conditions:
(a) The receipt by the Administrative Agent’s receipt Agent of counterparts hereof signed by each of the followingparties hereto (or, each in the case of any party as to which an executed counterpart shall be originalsnot have been received, facsimiles receipt by the Administrative Agent in form satisfactory to it of telecopy or copies in.pdf format unless otherwise specified, each properly executed other written confirmation from such party of execution of a counterpart hereof by such party);
(b) receipt by the Administrative Agent of a Responsible Officer Notice of Borrowing as required by Section 2.2;
(c) receipt by the Administrative Agent of a certificate of the signing Loan Party:chief financial officer, the treasurer or an assistant treasurer of the Borrower stating that the Specified Representations of the Borrower are true in all material respects as of the date of such certificate;
(id) a Committed receipt by the Administrative Agent of all fees and expenses payable to the Administrative Agent or any Bank on or prior to the Closing Date under the Fee Letter and all other amounts due and payable pursuant to the Loan NoticeDocuments on or prior to the Closing Date, which must including reimbursement or payment of all reasonable out-of-pocket expenses (including the expenses of counsel) required to be delivered reimbursed or paid by the Borrower hereunder or under any other Loan Document, in each case to the extent invoiced at least (A) three (3) Business Days two Domestic Business Days prior to the Closing Date if the Borrowing on the Closing Date will be of Eurodollar Rate Loans or (B) one (1) Business Day prior to the Closing Date if the Borrowing on the Closing Date will be of Base Rate LoansDate;
(iie) executed counterparts receipt by the Administrative Agent of this Agreement and the Guaranty;
(iii) each Collateral Document set forth on Schedule 4.01(a)(iii) required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party that is a party thereto, together with:
(A) certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank;
(B) a Perfection Certificate duly executed by each Loan Party; and
(C) to the extent required under the Collateral and Guarantee Requirement, evidence that all other actions, recordings and filings required shall have been taken, completed or otherwise provided thereunder;
(iv) such certificates of good standing from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party 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 and, in the case of the Borrower including certification by a Responsible Officer of the Borrower that (x) the documents referred to in clause (vii) below are in full force and effect as of the Closing Date and (y) the conditions specified in clauses (c) and (h) below have been satisfied (it being acknowledged that the conditions specified in this Section 4.01(a)(iv) shall be deemed satisfied to the extent such documents are delivered substantially simultaneously with the consummation of the Acquisition);
(vi) an opinion from of ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, Bermuda counsel to the Loan Parties, substantially in the form of Exhibit C hereto and (ii) an opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special New York counsel to the Loan Parties;
(vi) a solvency certificate from the chief financial officer of the Borrower (after giving effect to the Transactions) , substantially in the form attached hereto as of Exhibit ID hereto;
(viif) certified copies of the Acquisition Agreement and the schedules and exhibits thereto, duly executed by the parties thereto;
(viii) copies of a recent Lien, tax and judgment search in each jurisdiction reasonably requested receipt by the Administrative Agent with respect to of a certificate of the secretary or assistant secretary of each Loan Parties to the extent requested by the Administrative Agent no less than thirty (30) days prior to Party, dated as of the Closing Date; and
, in form and substance reasonably satisfactory to the Administrative Agent, certifying (ixi) customary payoff letters that attached thereto is a true and complete copy of each organizational document of such Loan Party certified (to the extent delivered applicable) as of a recent date by the Company on Secretary of State (or equivalent Governmental Authority) of the Closing Datestate or jurisdiction of its organization, (ii) reflecting that attached thereto is a true and complete copy of resolutions duly adopted by the amounts required board of directors of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to fully repay all outstanding Indebtedness and providing for the termination of all commitments under the Existing Credit Agreements which such Person is a party and, subject to in the receipt case of the specified repayment amountsBorrower, the release of all liensBorrowings hereunder, if anyand that such resolutions have not been modified, rescinded or amended and are in connection therewith; providedfull force and effect, however, that, each of the requirements set forth in clause (iii) above, including as to the delivery incumbency and specimen signature of documents each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party (together with a certificate of another officer as to the incumbency and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery specimen signature of the Security Agreement and to secretary or assistant secretary executing the extent that a Lien on such Collateral may be perfected certificate in this clause (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Borrowing on the Closing Date after the Borrower’s use of commercially reasonable efforts to provide such items on or prior to the Closing Date if the Borrower agrees to deliver, or cause to be delivered, such documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Closing Date (subject to extensions approved by the Administrative Agent in its reasonable discretione); provided, further, that with respect to the requirements set forth in clauses (ii), (iii) and (iv) above, above, each document that there have been no changes in the certificate of incorporation or instrument required to be executed by a bylaws (or equivalent organizational document) of such Loan Party other than Holdings from the certificate of incorporation or the Borrower bylaws (a “Post-Closing Loan Party”), such execution shall not be a condition or equivalent organizational document) delivered pursuant to the funding of the Facilities and such Post-Closing Loan Party shall execute and deliver such Loan Documents after consummation of the Acquisition, but no later than 5:00 p.m., New York City time, on the Closing Date.clause (i) above; and
(bg) All fees and expenses required to be paid hereunder on the Closing Date consummation (and all fees and expenses required to be paid under the Commitment Letter and the Fee Letter on the Closing Date) and, with respect to expenses and legal fees, to the extent invoiced in reasonable detail at least two (2) Business Days before the Closing Date (except as otherwise reasonably agreed to by the Borrower) shall have been paid in full in cash.
(c) Prior either prior to or substantially simultaneously concurrently with the initial Borrowing on funding of Loans under this Agreement) of the Closing Dateother Transactions, (i) the Equity Contribution shall have been consummated; and (ii) the Acquisition shall be consummated in accordance with the terms of applicable law and the Acquisition Agreement (without giving effect to any amendments to or waivers thereto since June 14, 2014 of the Acquisition Agreement that are materially adverse to the Lenders without Banks and not approved by the consent of each Lead Arranger, such consent not to be unreasonably withheld, conditioned or delayedAgents); provided that (A) any material change to The Administrative Agent shall promptly notify the definition of “Material Adverse Effect” contained in the Acquisition Agreement or any change or waiver of the condition precedent set forth in Section 9.2(a) of the Acquisition Agreement (as it relates to the representation Section 5.6(a) of the Acquisition Agreement) of the Acquisition Agreement, shall be deemed to be materially adverse to the Lenders and shall require the consent of each Lead Arranger, (B) a reduction in the purchase price under the Acquisition Agreement shall be deemed not to be materially adverse so long as it is allocated (1) first, to a reduction in the Equity Contribution until the Equity Contribution shall equal the Minimum Equity Contribution and (2) thereafter, (x) 70.0% to reduce the Term Loan Commitments Borrower and the commitments under the Second Lien Credit Agreement (on a pro rata basis) dollar for dollar and (y) 30.0% to the Equity Contribution and (C) any change to the terms Banks of the Acquisition Agreement that increases the cash consideration required to be paid by the Borrower thereunder shall not be deemed to be materially adverse if such increase is funded with an increase in the aggregate amount of the Equity Contribution.
(d) The Second Lien Credit Documents required by the terms of the Second Lien Credit Agreement to be executed on the Closing Date, shall have been duly executed and delivered by each Loan Party thereto, such notice shall be in full force conclusive and effect and shall be binding on terms as substantially provided for in the Commitment Letter or otherwise reasonably satisfactory to each Lead Arranger and the Administrative Agent shall have received a certified copy of the executed Second Lien Credit Agreement. Prior to or substantially simultaneously with the initial Borrowing on the Closing Date, the Borrower shall have received at least $760,000,000 in gross cash proceeds from the Second Lien Term Loanall parties hereto.
(e) The Closing Date Refinancing shall have been consummated prior to or substantially concurrently with the Acquisition.
(f) The Lenders shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Loan Parties reasonably requested in writing by them at least ten (10) Business Days prior to the Closing Date in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(g) The Acquisition Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality,” “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Closing Date; provided that, to the extent that any Acquisition Agreement Representation specifically refers to an earlier date, it shall be true and correct in all material respects as of such earlier date; provided further that a failure of any Acquisition Agreement Representation to be true and correct shall not (i) result in a failure of the condition to the initial availability of the Facilities on the Closing Date or (ii) result in a Default or Event of Default, unless, in each case, such failure results in a failure of a condition precedent to the Borrower’s (or any Affiliates’) obligation to consummate the Acquisition pursuant to the terms of the Acquisition Agreement.
Appears in 1 contract
Conditions to Initial Borrowing. The obligation of each Lender to extend credit to the Borrower and of the Issuing Bank to issue Letters of Credit hereunder on the Closing Date is subject to the satisfaction prior to (or substantially simultaneously with) the consummation of the Acquisition of, or due waiver in accordance with Section 11.01 of, each of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent or otherwise set forth on Schedule 6.16:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or copies in.pdf format unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party:
(i) a Committed Loan Notice, which must be delivered at least (A) three (3) Business Days Business Days prior to the Closing Date if the Borrowing on the Closing Date will be of Eurodollar Rate Loans or (B) one (1) Business Day prior to the Closing Date if the Borrowing on the Closing Date will be of Base Rate Loans;
(ii) executed counterparts of this Agreement and the Guaranty;
(iii) each Collateral Document set forth on Schedule 4.01(a)(iii) required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party that is a party thereto, together with:
(A) copies of certificates, if any, representing the Pledged Equity referred to therein accompanied by copies of undated stock powers executed in blank and copies of instruments evidencing the Pledged Debt indorsed in blank, in each case, including evidence reasonably satisfactory to the Administrative that such collateral was delivered on the Closing Date to the First Lien Collateral Agent;
(B) a Perfection Certificate duly executed by each Loan Party; and
(C) to the extent required under the Collateral and Guarantee Requirement, evidence that all other actions, recordings and filings required shall have been taken, completed or otherwise provided thereunder;
(iv) such certificates of good standing from the applicable secretary of state of the state of organization of each Loan Party, certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party 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 and, in the case of the Borrower including certification by a Responsible Officer of the Borrower that (x) the documents referred to in clause (vii) below are in full force and effect as of the Closing Date and (y) the conditions specified in clauses (c) and (h) below have been satisfied (it being acknowledged that the conditions specified in this Section 4.01(a)(iv) shall be deemed satisfied to the extent such documents are delivered substantially simultaneously with the consummation of the Acquisition);
(v) an opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel to the Loan Parties;
(vi) a solvency certificate from the chief financial officer of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit I;
(vii) certified copies of the Acquisition Agreement and the schedules and exhibits thereto, duly executed by the parties thereto;
(viii) copies of a recent Lien, tax and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties to the extent requested by the Administrative Agent no less than thirty (30) days prior to the Closing Date; and
(ix) customary payoff letters (to the extent delivered by the Company on the Closing Date) reflecting the amounts required to fully repay all outstanding Indebtedness and providing for the termination of all commitments under the Existing Credit Agreements and, subject to the receipt of the specified repayment amounts, the release of all liens, if any, in connection therewith; provided, however, that, each of the requirements set forth in clause (iii) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic SubsidiariesSubsidiaries on the Closing Date to the First Lien Collateral Agent) shall not constitute conditions precedent to the Borrowing on the Closing Date after the Borrower’s use of commercially reasonable efforts to provide such items on or prior to the Closing Date if the Borrower agrees to deliver, or cause to be delivered, such documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Closing Date (subject to extensions approved by the Administrative Agent in its reasonable discretion); provided, further, that with respect to the requirements set forth in clauses (ii), (iii) and (iv) above, above, each document or instrument required to be executed by a Loan Party other than Holdings or the Borrower (a “Post-Closing Loan Party”), such execution shall not be a condition to the funding of the Facilities and such Post-Closing Loan Party shall execute and deliver such Loan Documents after consummation of the Acquisition, but no later than 5:00 p.m., New York City time, on the Closing Date.
(b) All fees and expenses required to be paid hereunder on the Closing Date (and all fees and expenses required to be paid under the Commitment Letter and the Fee Letter on the Closing Date) and, with respect to expenses and legal fees, to the extent invoiced in reasonable detail at least two (2) Business Days before the Closing Date (except as otherwise reasonably agreed to by the Borrower) shall have been paid in full in cash.
(c) Prior to or substantially simultaneously with the initial Borrowing on the Closing Date, (i) the Equity Contribution shall have been consummated; and (ii) the Acquisition shall be consummated in accordance with the terms of the Acquisition Agreement (without giving effect to any amendments or waivers thereto since June 14, 2014 that are materially adverse to the Lenders without the consent of each Lead Arranger, such consent not to be unreasonably withheld, conditioned or delayed); provided that (A) any material change to the definition of “Material Adverse Effect” contained in the Acquisition Agreement or any change or waiver of the condition precedent set forth in Section 9.2(a) of the Acquisition Agreement (as it relates to the representation Section 5.6(a) of the Acquisition Agreement) of the Acquisition Agreement, shall be deemed to be materially adverse to the Lenders and shall require the consent of each Lead Arranger, (B) a reduction in the purchase price under the Acquisition Agreement shall be deemed not to be materially adverse so long as it is allocated (1) first, to a reduction in the Equity Contribution until the Equity Contribution shall equal the Minimum Equity Contribution and (2) thereafter, (x) 70.0% to reduce the Term Loan Commitments and the term commitments under the Second First Lien Credit Agreement (on a pro rata basis) dollar for dollar and (y) 30.0% to the Equity Contribution and (C) any change to the terms of the Acquisition Agreement that increases the cash consideration required to be paid by the Borrower thereunder shall not be deemed to be materially adverse if such increase is funded with an increase in the aggregate amount of the Equity Contribution.
(d) The Second First Lien Credit Documents required by the terms of the Second First Lien Credit Agreement to be executed on the Closing Date, shall have been duly executed and delivered by each Loan Party thereto, shall be in full force and effect and shall be on terms as substantially provided for in the Commitment Letter or otherwise reasonably satisfactory to each Lead Arranger and the Administrative Agent shall have received a certified copy of the executed Second First Lien Credit Agreement. Prior to or substantially simultaneously with the initial Borrowing on the Closing Date, the Borrower shall have received at least $760,000,000 1,800,000,000 in gross cash proceeds from the Second First Lien Term LoanLoans.
(e) The Closing Date Refinancing shall have been consummated prior to or substantially concurrently with the Acquisition.
(f) The Lenders shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Loan Parties reasonably requested in writing by them at least ten (10) Business Days prior to the Closing Date in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(g) The Acquisition Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if qualified by “materiality,” “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Closing Date; provided that, to the extent that any Acquisition Agreement Representation specifically refers to an earlier date, it shall be true and correct in all material respects as of such earlier date; provided further that a failure of any Acquisition Agreement Representation to be true and correct shall not (i) result in a failure of the condition to the initial availability of the Facilities Facility on the Closing Date or (ii) result in a Default or Event of Default, unless, in each case, such failure results in a failure of a condition precedent to the Borrower’s (or any Affiliates’) obligation to consummate the Acquisition pursuant to the terms of the Acquisition Agreement.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Advantage Solutions Inc.)
Conditions to Initial Borrowing. The obligation of each Lender to extend credit to the Borrower and of the Issuing Bank to issue Letters of Credit make its Initial Borrowing hereunder on the Closing Date is subject to the satisfaction prior to (or substantially simultaneously with) the consummation of the Acquisition of, or due waiver in accordance with Section 11.01 of, each of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent or otherwise set forth on Schedule 6.16:
(a) The the Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or copies in.pdf format unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party:, each dated the Initial Funding Date (or, in the case of certificates of governmental officials, a recent date before the Initial Funding Date):
(i) executed counterparts of the Guaranty;
(ii) a Committed Loan NoticeNote executed by the Borrower in favor of each Lender requesting a Note, which must be delivered with such requests provided to the Borrower at least (A) three (3) Business Days two Business Days prior to the Closing Date if the Borrowing on the Closing Date will be of Eurodollar Rate Loans or (B) one (1) Business Day prior to the Closing Date if the Borrowing on the Closing Date will be of Base Rate Loans;
(ii) executed counterparts of this Agreement and the GuarantyInitial Funding Date;
(iii) each Collateral Document set forth on Schedule 4.01(a)(iii) required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party that is a party theretoSecurity Agreement, together with:
(A) certificatesexcept to the extent delivered to the First Lien Administrative Agent, if any, certificates representing the Pledged Equity Securities (if any) referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Intercompany Notes and any Pledged Debt Collateral required to be delivered to the Administrative Agent pursuant to the Security Agreement, in each case, indorsed in blank;,
(B) a Perfection Certificate duly executed by each Loan Party; andproper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that are necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) certified copies of UCC, United States Patent and Trademark Office, United States Copyright Office, tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents that name any Loan Party or Qualified Subsidiary as debtor and that are filed in those state and county jurisdictions in which any Loan Party or Qualified Subsidiary is organized or maintains its principal place of business, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Liens permitted by Section 7.01 or any other Liens acceptable to the extent required under Administrative Agent), and
(D) a completed and executed Perfection Certificate substantially in the Collateral and Guarantee Requirement, evidence that all other actions, recordings and filings required shall have been taken, completed or otherwise provided thereunderform of Exhibit I-1;
(iv) such certificates a solvency certificate in the form of good standing from Exhibit K executed and delivered by the applicable secretary of state chief financial officer of the state of organization of each Loan Party, Borrower;
(v) such certificates of resolutions or other action, 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 party;
(vi) such documents and certifications as the Closing Date andAdministrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, in the case and that each of the Borrower including certification by a Responsible Officer and its Restricted Subsidiaries is validly existing, in good standing and qualified to engage in business in the jurisdiction of the Borrower that (x) the documents referred to in clause its organization;
(vii) below are in full force and effect as the opinion of the Closing Date and (y) the conditions specified in clauses (c) and (h) below have been satisfied (it being acknowledged that the conditions specified in this Section 4.01(a)(iv) shall be deemed satisfied to the extent such documents are delivered substantially simultaneously with the consummation of the Acquisition);
(v) an opinion from ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special New York counsel to the Loan Parties;
(vi) a solvency certificate from the chief financial officer of the Borrower (after giving effect , addressed to the Transactions) Administrative Agent and each Lender and substantially in the form attached hereto as Exhibit I;
(vii) certified copies of provided to the Acquisition Agreement and Lenders prior to the schedules and exhibits thereto, duly executed by the parties theretoSigning Date;
(viii) copies the opinion of a recent Lien▇▇▇▇▇▇▇▇▇ Will & ▇▇▇▇▇ LLP, tax and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect local counsel to the Loan Parties in Texas, addressed to the extent requested by the Administrative Agent no less than thirty (30) days and each Lender and substantially in the form provided to the Lenders prior to the Closing Signing Date;
(ix) the financial statements referenced in Sections 5.05(a) and (d);
(x) the Junior Lien Intercreditor Agreement, fully executed by the First Lien Administrative Agent, the Administrative Agent, and acknowledged by the Loan Parties; and
(ixxi) customary payoff letters (a certificate of a Responsible Officer of Borrower as to the extent delivered by the Company on the Closing Date) reflecting the amounts required to fully repay all outstanding Indebtedness and providing for the termination of all commitments under the Existing Credit Agreements and, subject to the receipt satisfaction of the specified repayment amounts, the release of all liens, if any, in connection therewith; provided, however, that, each of the requirements conditions set forth in clause (iii) above, including the delivery of documents and instruments necessary to satisfy the Collateral and Guarantee Requirement (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the Uniform Commercial Code or (y) by the delivery of stock certificates of the Borrower and its wholly owned Domestic Subsidiaries) shall not constitute conditions precedent to the Borrowing on the Closing Date after the Borrower’s use of commercially reasonable efforts to provide such items on or prior to the Closing Date if the Borrower agrees to deliver, or cause to be delivered, such documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety (90) days after the Closing Date (subject to extensions approved by the Administrative Agent in its reasonable discretion); provided, further, that with respect to the requirements set forth in clauses (ii), (iiiSections 4.01(f) and (iv) above, above, each document or instrument required to be executed by a Loan Party other than Holdings or the Borrower (a “Post-Closing Loan Party”g), such execution shall not be a condition to the funding of the Facilities and such Post-Closing Loan Party shall execute and deliver such Loan Documents after consummation of the Acquisition, but no later than 5:00 p.m., New York City time, on the Closing Date.
(b) All fees and expenses required to be paid hereunder on to the Closing Date (and all fees and expenses required to be paid under Administrative Agent, the Commitment Letter Lead Arrangers and the Fee Letter Lenders on the Closing Date) and, with respect to expenses and legal fees, to the extent invoiced in reasonable detail at least two (2) Business Days or before the Closing Initial Funding Date (except as otherwise reasonably agreed to by the Borrower) shall have been paid in full in cashpaid.
(c) Prior to or substantially simultaneously with Unless waived by the initial Borrowing on Administrative Agent, the Closing Date, (i) the Equity Contribution Borrower shall have been consummated; paid all applicable expenses (including the reasonable and invoiced fees and disbursements of counsel (iiwith such invoices provided to the Borrower at least two Business Days prior to the Initial Funding Date)) the Acquisition shall be consummated in accordance with the terms of the Acquisition Agreement (without giving effect to any amendments or waivers thereto since June 14, 2014 that are materially adverse due pursuant to the Lenders without the consent of each Lead Arranger, such consent not to be unreasonably withheld, conditioned or delayedSection 11.05(a); provided that (A) any material change to the definition of “Material Adverse Effect” contained in the Acquisition Agreement or any change or waiver of the condition precedent set forth in Section 9.2(a) of the Acquisition Agreement (as it relates to the representation Section 5.6(a) of the Acquisition Agreement) of the Acquisition Agreement, shall be deemed to be materially adverse to the Lenders and shall require the consent of each Lead Arranger, (B) a reduction in the purchase price under the Acquisition Agreement shall be deemed not to be materially adverse so long as it is allocated (1) first, to a reduction in the Equity Contribution until the Equity Contribution shall equal the Minimum Equity Contribution and (2) thereafter, (x) 70.0% to reduce the Term Loan Commitments and the commitments under the Second Lien Credit Agreement (on a pro rata basis) dollar for dollar and (y) 30.0% to the Equity Contribution and (C) any change to the terms of the Acquisition Agreement that increases the cash consideration required to be paid by the Borrower thereunder shall not be deemed to be materially adverse if such increase is funded with an increase in the aggregate amount of the Equity Contribution.
(d) The Second Lien Credit Documents required by Substantially concurrently with the terms of the Second Lien Credit Agreement to be executed Initial Borrowings on the Closing Initial Funding Date, the initial borrowing under the First Lien Facilities shall be consummated.
(e) The Refinancing shall have been duly executed and delivered by each Loan Party theretoor shall substantially concurrently with the Initial Borrowing on the Initial Funding Date be consummated, shall be in full force and effect and shall be on terms as substantially provided for in the Commitment Letter or otherwise reasonably satisfactory to each Lead Arranger and the Administrative Agent shall have received a certified copy of the executed Second Lien Credit Agreement. Prior to or substantially simultaneously with the initial Borrowing on the Closing Datereceived, the Borrower shall have received at least $760,000,000 in gross cash proceeds from the Second Lien Term Loan.
(e) The Closing Date Refinancing shall have been consummated prior to or substantially concurrently with the AcquisitionInitial Borrowings on the Initial Funding Date shall receive, (i) evidence of the discharge of the indentures governing the Senior Secured Notes and the Parent Notes, (ii) UCC-3 termination statements with respect to all Liens securing the Senior Secured Notes and the Existing Credit Agreement and (iii) a customary “payoff letter” for the Existing Credit Agreement.
(f) The Lenders shall have received representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at least three (3) Business Days prior to the Closing Date all documentation and other information about the Loan Parties reasonably requested any time under or in writing by them at least ten (10) Business Days prior to the Closing Date in order to comply with applicable “know your customer” and anti-money laundering rules and regulationsconnection herewith or therewith, including the USA PATRIOT Act.
(g) The Acquisition Agreement Representations and the Specified Representations shall be true and correct in all material respects (or, if except that any representation and warranty that is qualified by as to “materiality,” or “Material Adverse Effect” or similar language, shall be true and correct in all respects (after giving effect to such qualification)respects) on and as of the Closing Initial Funding Date; provided that, except to the extent that any Acquisition Agreement Representation such representations and warranties specifically refers refer to an earlier date, it in which case they shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such earlier date; provided further that a failure of any Acquisition Agreement Representation to be true and correct shall not .
(ig) No Default would result in a failure from the Initial Borrowing or from the application of the condition to the initial availability of the Facilities on the Closing Date or (ii) result in a Default or Event of Default, unless, in each case, such failure results in a failure of a condition precedent to the Borrower’s (or any Affiliates’) obligation to consummate the Acquisition pursuant to the terms of the Acquisition Agreementproceeds thereof.
Appears in 1 contract
Sources: Second Lien Credit Agreement (American Renal Associates Holdings, Inc.)