Conditions to the Closing Date. The effectiveness of this Agreement on the Closing Date is subject to the satisfaction of the following conditions precedent: (a) The Administrative Agent’s receipt of executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower. (b) All fees required to be paid to the Administrative Agent and the Lenders on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid. (c) The Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent and the Lenders (directly to such counsel if requested by the Administrative Agent or the Lenders, as applicable) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Lenders, as applicable). (d) The representations and warranties of the Borrower and each other Loan Party contained in Article V shall be true and correct on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date. (e) No Default shall exist on the Closing Date. (f) All consents, licenses, approvals, waivers, acknowledgements and other agreements required in connection with the execution, delivery and performance by such Loan Party, and the validity against such Loan Party, of the Loan Documents delivered on the Closing Date to which it is a party shall be in full force and effect. (g) The Administrative Agent shall have received at least 3 Business Days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act that has been requested by the Administrative Agent in writing at least 10 Business Days prior to the Closing Date. (h) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders: (i) executed counterparts of the Guaranty, in form and substance satisfactory to the Lenders, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower; (ii) executed counterparts of the ABL Credit Agreement, in form and substance satisfactory to the Lenders duly executed by the parties thereto; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Lenders may 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; (iv) such documents and certifications as the Lenders may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; (v) a favorable opinion of each of (i) Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇, P.C., Colorado counsel to the Loan Parties, and (iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, New Mexico counsel to the Loan Parties, in each case addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request; (vi) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.01(d) and (e) have been satisfied; (vii) a financial forecast of the Borrower and its Subsidiaries on a consolidated basis prepared by management of the Borrower, including consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on an annual basis for each of the Borrower’s fiscal years 2016 through and including 2021; (viii) a Note executed by the Borrower in favor of each Lender requesting a Note; (ix) executed counterparts of the Intercreditor Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties thereto; (x) executed counterparts of the Security Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties 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) proper UCC financing statements in form appropriate for filing in all jurisdictions that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement, (C) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Lenders may deem necessary or desirable in order to cause the Term Loan Priority Collateral, subject to Section 6.12(f), to be subject to a perfected, first priority Lien in favor of the Administrative Agent for the benefit of the Secured Parties (prior to all other Liens other than Liens permitted pursuant to Section 7.01) as determined by the Lenders in their reasonable discretion, and (D) the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement and in form and substance satisfactory to the Lenders) required pursuant to the Security Agreement (except to the extent otherwise provided in the Intercreditor Agreement). (xi) intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case in form and substance satisfactory to the Lenders and as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken; (xii) executed counterparts of the Intercompany Note, in form and substance satisfactory to the Lenders, duly executed by the parties thereto; (xiii) certificates attesting to the Solvency of (i) the Borrower and its Subsidiaries (individually and in the aggregate on a consolidated basis) and (ii) each of the Borrower, Basic Energy Services GP, LLC, Basic Energy Services LP, LLC, Basic Energy Services, L.P., and ▇▇▇▇▇▇ Industries, Inc. individually, before and after giving effect to the transactions contemplated by the Plan of Reorganization on the Closing Date and the payment of fees and expenses in connection therewith, from its chief financial officer; (xiv) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral; and (xv) such other certificates or documents as the Administrative Agent or any Lender reasonably may require. (i) The Confirmation Order shall have been entered by the Bankruptcy Court and shall have become final and non-appealable. (j) After giving effect to the Closing Date, the Plan Effective Date shall have occurred. (k) Substantially concurrently with the Closing Date, all principal, premium, if any, interest, fees and other amounts due or outstanding under the DIP Credit Agreement shall have been paid in full, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, all pursuant to documentation in form and substance satisfactory to the Administrative Agent and the Lenders, and the Administrative Agent shall have received reasonably satisfactory evidence thereof. 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 proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Basic Energy Services Inc)
Conditions to the Closing Date. The effectiveness obligations of this Agreement the Lenders to make Loans on the Closing Date is are subject to the satisfaction each of the following conditions precedentbeing satisfied (or waived in accordance with Section 9.01(e)(i)Section 9.02) on or prior to the Closing Date:
(a) The Administrative Agent’s receipt of executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower.
(b) All fees required to be paid to the Administrative Agent and the Lenders on or before the Closing Effective Date shall have been paid and all fees required to be paid to the Lenders on occurred or before the Closing Date shall have been paid.
(c) The Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent and the Lenders (directly to such counsel if requested by the Administrative Agent or the Lenders, as applicable) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Lenders, as applicable).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Article V shall be true and correct on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date.
(e) No Default shall exist on occur simultaneously with the Closing Date.
(fb) All consents, licenses, approvals, waivers, acknowledgements and other agreements required in connection with the execution, delivery and performance by such Loan Party, and the validity against such Loan Party, of the Loan Documents delivered on the Closing Date to which it is a party shall be in full force and effect.
(g) The Administrative Agent shall have received at least 3 Business Days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act that has been requested by the Administrative Agent in writing at least 10 Business Days prior to the Closing Date.
(h) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of the Guaranty, in form and substance satisfactory to the Lenders, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) executed counterparts of the ABL Credit Agreement, in form and substance satisfactory to the Lenders duly executed by the parties thereto;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Lenders may 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;
(iv) such documents and certifications as the Lenders may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable legal opinion of each of (i) Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇LLP, P.C., Colorado U.S. counsel to the Loan PartiesBorrower (in the same form as that delivered to the administrative agent under the Senior Credit Agreement in connection with the effectiveness of the credit facilities thereunder as appropriately modified to reflect this Agreement and the parties hereto);
(c) substantially concurrently with the funding of the Loans on the Closing Date, the Canopy Investment shall have been consummated in accordance with the Investment Agreements, and the Investment Agreements shall not have been amended or modified by the Company, and no condition shall have been waived or consent granted by the Company, in any respect that is materially adverse to the Lenders or the Arrangers without the Arrangers’ prior written consent (it being understood and agreed that (i) any amendment, modification, waiver or consent that results in a change to the definition of the term “Material Adverse Effect” (as defined in the Subscription Agreement) shall be deemed to be materially adverse to the Lenders and the Arrangers, and (iiiii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP(a) any decrease in the Investment Consideration (as defined in the Subscription Agreement) that is accompanied by a dollar-for-dollar reduction in Commitments and (b) any increase in the Investment Consideration, New Mexico counsel to together with any other increases since the Loan Partiesdate of the Commitment Letter which does not exceed 5% of the Investment Consideration, in each case addressed shall be deemed not to be materially adverse to the Lenders);
(d) since March 31, 2018, no Material Adverse Effect (as defined in the Subscription Agreement as in effect on the date of the Commitment Letter) shall have occurred;
(e) the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(vi) shall have received a certificate substantially in the form of Exhibit G signed by a Responsible Officer of the Borrower Company with specific knowledge about the subject matter thereof, (i) certifying that the conditions specified in Sections 4.01(d4.02(c), (d) and (e(g) have been satisfied;
(vii) a financial forecast of the Borrower and its Subsidiaries on a consolidated basis prepared by management of the Borrower, including consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on an annual basis for each of the Borrower’s fiscal years 2016 through and including 2021;
(viii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(ix) executed counterparts of the Intercreditor Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(x) executed counterparts of the Security Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties 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) proper UCC financing statements in form appropriate for filing in all jurisdictions that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Lenders may deem necessary or desirable in order to cause the Term Loan Priority Collateral, subject to Section 6.12(f), to be subject to a perfected, first priority Lien in favor of the Administrative Agent for the benefit of the Secured Parties (prior to all other Liens other than Liens permitted pursuant to Section 7.01) as determined by the Lenders in their reasonable discretion, and
(D) the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement and in form and substance satisfactory to the Lenders) required pursuant to the Security Agreement (except to the extent otherwise provided in the Intercreditor Agreement).
(xi) intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case in form and substance satisfactory to the Lenders and as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken;
(xii) executed counterparts of the Intercompany Note, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(xiii) certificates attesting to the Solvency of (i) the Borrower and its Subsidiaries (individually and in the aggregate on a consolidated basis) and (ii) each of setting forth the Borrower, Basic Energy Services GP, LLC, Basic Energy Services LP, LLC, Basic Energy Services, L.P., and ▇▇▇▇▇▇ Industries, Inc. individually, before and after giving effect to the transactions contemplated by the Plan of Reorganization current Debt Ratings on the Closing Date and the payment of fees and expenses in connection therewith, from its chief financial officer;
(xiviii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties certain matters related to the business of the Loan Parties that constitute Collateral; andCanopy set forth therein;
(xvf) such other certificates or documents as the Administrative Agent or any Lender reasonably may require.
(i) The Confirmation Order shall have been entered by the Bankruptcy Court and shall have become final and non-appealable.
(j) After giving effect to the Closing Date, the Plan Effective Date shall have occurred.
(k) Substantially concurrently with the Closing Date, all principal, premium, if any, interest, fees and other amounts due or outstanding under the DIP Credit Agreement shall have been paid in full, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, all pursuant to documentation in form and substance satisfactory to the Administrative Agent and the Lenders, and the Administrative Agent shall have received reasonably satisfactory evidence thereof. Without limiting a certificate attesting to the generality Solvency of the provisions Company and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transactions in the form of Exhibit D, dated as of the last paragraph Closing Date and executed by a Financial Officer 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 Company;
(g) the Specified Representations and Investment Agreements Representations shall be deemed true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) on the Closing Date (unless such Specified Representations relate to an earlier date, in which case, such Specified Representations shall be true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) as of such earlier date;
(h) the Administrative Agent and the Arrangers shall have consented toreceived:
(i) with respect to the Company and its Subsidiaries, approved or accepted or (i) audited consolidated balance sheets and related statements of comprehensive income (loss), stockholder’s equity and cash flows for the three most recently completed fiscal years ended at least 60 days prior to be satisfied withthe Closing Date (the “Company Audited Financial Statements”) and (ii) unaudited consolidated balance sheets and related unaudited statements of comprehensive income and cash flows for each interim fiscal quarter ended since the last audited financial statements and at least 40 days prior to the Closing Date (the “Company Interim Financial Statements”); provided that filing of the required financial statements on Form 10-K and Form 10-Q by the Company will satisfy the foregoing requirements;
(ii) with respect to the Target and its Subsidiaries, (i) audited consolidated balance sheets and related statements of comprehensive income(loss), stockholder’s equity and cash flows for the three most recently completed fiscal years ended at least 91 days prior to the Closing Date (the “Target Audited Financial Statements”) and (ii) unaudited consolidated balance sheets and related unaudited statements of comprehensive income (loss) and cash flows for each document or other matter interim fiscal quarter ended since the last audited financial statements and at least 46 days prior to the Closing Date (the “Target Interim Financial Statements”); provided that filing of the required thereunder to be consented to or approved financial statements on Form 40-F and Form 6-K by or acceptable or satisfactory to a Lender unless the Target will satisfy the foregoing requirements;
(i) the Administrative Agent shall have received notice from such Lender a Borrowing Request in accordance with Section 2.03; and
(j) the Company shall have paid, by wire transfer of immediately available funds, all reasonable and documented in reasonable detail costs, fees, out-of-pocket expenses, compensation and other amounts then due and payable as previously agreed in the Commitment Letter and Fee Letter, in the case of the costs and out-of-pocket expenses, to the extent invoiced at least three Business Days prior to the proposed Closing Date specifying its objection theretoDate.
Appears in 1 contract
Sources: Term Loan Restatement Agreement (Constellation Brands, Inc.)
Conditions to the Closing Date. The effectiveness obligation of this Agreement each Lender to make a Loan on the Closing Date is subject to the satisfaction (or waiver in accordance with Section 10.2) of the following conditions precedent:
(a) The Administrative Agent’s receipt of executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower.
(b) All fees required to be paid to the Administrative Agent and the Lenders on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) The Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent and the Lenders (directly to such counsel if requested by the Administrative Agent or the Lenders, as applicable) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Lenders, as applicable).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Article V shall be true and correct on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date.
(e) No Default shall exist on the Closing Date.
(f) All consents, licenses, approvals, waivers, acknowledgements and other agreements required in connection with the execution, delivery and performance by such Loan Party, and the validity against such Loan Party, of the Loan Documents delivered on the Closing Date to which it is a party shall be in full force and effect.
(g) The Administrative Agent shall have received at least 3 Business Days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act that has been requested by the Administrative Agent in writing at least 10 Business Days prior to the Closing Date.
(h) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of the Guaranty, in form and substance satisfactory to the Lenders, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) executed counterparts of the ABL Credit Agreement, in form and substance satisfactory to the Lenders duly executed by the parties thereto;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Lenders may 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;
(iv) such documents and certifications as the Lenders may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of (i) Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇, P.C., Colorado counsel to the Loan Parties, and (iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, New Mexico counsel to the Loan Parties, in each case addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.01(d) and (e) have been satisfied;
(vii) a financial forecast of the Borrower and its Subsidiaries on a consolidated basis prepared by management of the Borrower, including consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on an annual basis for each of the Borrower’s fiscal years 2016 through and including 2021;
(viii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(ix) executed counterparts of the Intercreditor Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(x) executed counterparts of the Security Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties 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) proper UCC financing statements in form appropriate for filing in all jurisdictions that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Lenders may deem necessary or desirable in order to cause the Term Loan Priority Collateral, subject to Section 6.12(f), to be subject to a perfected, first priority Lien in favor of the Administrative Agent for the benefit of the Secured Parties (prior to all other Liens other than Liens permitted pursuant to Section 7.01) as determined by the Lenders in their reasonable discretion, and
(D) the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement and in form and substance satisfactory to the Lenders) required pursuant to the Security Agreement (except to the extent otherwise provided in the Intercreditor Agreement).
(xi) intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case in form and substance satisfactory to the Lenders and as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken;
(xii) executed counterparts of the Intercompany Note, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(xiii) certificates attesting to the Solvency of (i) the Borrower and its Subsidiaries (individually and in the aggregate on a consolidated basis) and (ii) each of the Borrower, Basic Energy Services GP, LLC, Basic Energy Services LP, LLC, Basic Energy Services, L.P., and ▇▇▇▇▇▇ Industries, Inc. individually, before and after giving effect to the transactions contemplated by the Plan of Reorganization on the Closing Date and the payment of fees and expenses in connection therewith, from its chief financial officer;
(xiv) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral; and
(xv) such other certificates or documents as the Administrative Agent or any Lender reasonably may require.
(i) The Confirmation Order shall have been entered by the Bankruptcy Court and shall have become final and non-appealable.
(j) After giving effect to the Closing Date, the Plan Effective Date shall have occurred.
(kb) Substantially concurrently with the Closing Date, all principal, premium, if any, interest, fees and other amounts due or outstanding under the DIP Credit Agreement shall have been paid in full, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, all pursuant to documentation in form and substance satisfactory to the Administrative Agent and the Lenders, and the The Administrative Agent shall have received reasonably satisfactory a duly executed Loan Notice complying with the terms of Section 2.5.
(c) Reasonable evidence thereof. Without limiting that all fees then due to the generality Arrangers, the Lenders, the Administrative Agent and their Affiliates required to be paid on or prior to the Closing Date pursuant to paragraphs (a), (b) and (c) of Section 2.11 and the Fee Letter shall have been or will be paid on or before the Closing Date, which amounts, at the Borrower’s request, may be offset against the proceeds of the provisions Loans.
(d) The Scheme Effective Date shall have occurred (in the case of the last paragraph Closing Date Acquisition occurring by way of Section 9.03, for purposes a Scheme) or the Offer shall have become or been declared unconditional in all respects (in the case 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 Closing Date Acquisition occurring by or acceptable or satisfactory to a Lender unless the way of an Offer).
(e) The Administrative Agent shall have received notice a certificate, dated the Closing Date and signed by a Responsible Officer of the Borrower, substantially in the form of Exhibit C, confirming that:
(i) in the case of a Scheme, the Scheme Effective Date has occurred; or
(ii) in the case of an Offer, the Offer has become or been declared unconditional in all respects.
(f) At the time of and immediately after giving effect to such Loan, no Major Default shall have occurred and be continuing or would result therefrom or from the proposed borrowing of Loans.
(g) It is not unlawful in any applicable jurisdiction for such Lender prior to fund that Loan; provided that such ▇▇▇▇▇▇ has notified the proposed Closing Date specifying its objection theretoAdministrative Agent promptly upon becoming aware of such unlawfulness; provided further that such unlawfulness alone will not excuse any other Lender from participating in the relevant Loan and will not in any way affect the obligations of any other Lender.
Appears in 1 contract
Sources: Bridge Term Loan Credit and Guaranty Agreement (DoorDash, Inc.)
Conditions to the Closing Date. The effectiveness obligations of this Agreement the Lenders to make Loans on the Closing Date is are subject to the satisfaction each of the following conditions precedentbeing satisfied (or waived in accordance with Section 9.02) on or prior to the Closing Date:
(a) The Administrative Agent’s receipt of executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and Effective Date shall have occurred or shall occur simultaneously with the Borrower.Closing Date;
(b) All fees required to be paid to the Administrative Agent and the Lenders on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) The Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent and the Lenders (directly to such counsel if requested by the Administrative Agent or the Lenders, as applicable) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Lenders, as applicable).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Article V shall be true and correct on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date.
(e) No Default shall exist on the Closing Date.
(f) All consents, licenses, approvals, waivers, acknowledgements and other agreements required in connection with the execution, delivery and performance by such Loan Party, and the validity against such Loan Party, of the Loan Documents delivered on the Closing Date to which it is a party shall be in full force and effect.
(g) The Administrative Agent shall have received at least 3 Business Days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act that has been requested by the Administrative Agent in writing at least 10 Business Days prior to the Closing Date.
(h) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of the Guaranty, in form and substance satisfactory to the Lenders, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) executed counterparts of the ABL Credit Agreement, in form and substance satisfactory to the Lenders duly executed by the parties thereto;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Lenders may 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;
(iv) such documents and certifications as the Lenders may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable legal opinion of each of (i) Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇LLP, P.C., Colorado U.S. counsel to the Loan PartiesBorrower (in the same form as that delivered to the administrative agent under the Senior Credit Agreement in connection with the effectiveness of the credit facilities thereunder as appropriately modified to reflect this Agreement and the parties hereto);
(c) substantially concurrently with the funding of the Loans on the Closing Date, the Canopy Investment shall have been consummated in accordance with the Investment Agreements, and the Investment Agreements shall not have been amended or modified by the Company, and no condition shall have been waived or consent granted by the Company, in any respect that is materially adverse to the Lenders or the Arranger without the Arranger’s prior written consent (it being understood and agreed that (i) any amendment, modification, waiver or consent that results in a change to the definition of the term “Material Adverse Effect” (as defined in the Subscription Agreement) shall be deemed to be materially adverse to the Lenders and the Arranger, and (iiiii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP(a) any decrease in the Investment Consideration (as defined in the Subscription Agreement) that is accompanied by a dollar-for-dollar reduction in Commitments and (b) any increase in the Investment Consideration, New Mexico counsel to together with any other increases since the Loan Partiesdate of the Commitment Letter which does not exceed 5% of the Investment Consideration, in each case addressed shall be deemed not to be materially adverse to the Lenders);
(d) since March 31, 2018, no Material Adverse Effect (as defined in the Subscription Agreement as in effect on the date of the Commitment Letter) shall have occurred;
(e) the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(vi) shall have received a certificate substantially in the form of Exhibit G signed by a Responsible Officer of the Borrower Company with specific knowledge about the subject matter thereof, (i) certifying that the conditions specified in Sections 4.01(d4.02(c), (d) and (eg) have been satisfied;
(vii) a financial forecast of the Borrower and its Subsidiaries on a consolidated basis prepared by management of the Borrower, including consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on an annual basis for each of the Borrower’s fiscal years 2016 through and including 2021;
(viii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(ix) executed counterparts of the Intercreditor Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(x) executed counterparts of the Security Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties 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) proper UCC financing statements in form appropriate for filing in all jurisdictions that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Lenders may deem necessary or desirable in order to cause the Term Loan Priority Collateral, subject to Section 6.12(f), to be subject to a perfected, first priority Lien in favor of the Administrative Agent for the benefit of the Secured Parties (prior to all other Liens other than Liens permitted pursuant to Section 7.01) as determined by the Lenders in their reasonable discretion, and
(D) the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement and in form and substance satisfactory to the Lenders) required pursuant to the Security Agreement (except to the extent otherwise provided in the Intercreditor Agreement).
(xi) intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case in form and substance satisfactory to the Lenders and as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken;
(xii) executed counterparts of the Intercompany Note, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(xiii) certificates attesting to the Solvency of (i) the Borrower and its Subsidiaries (individually and in the aggregate on a consolidated basis) and (ii) each of setting forth the Borrower, Basic Energy Services GP, LLC, Basic Energy Services LP, LLC, Basic Energy Services, L.P., and ▇▇▇▇▇▇ Industries, Inc. individually, before and after giving effect to the transactions contemplated by the Plan of Reorganization current Debt Ratings on the Closing Date and the payment of fees and expenses in connection therewith, from its chief financial officer;
(xiviii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties certain matters related to the business of the Loan Parties that constitute Collateral; andTarget set forth therein;
(xvf) such other certificates or documents as the Administrative Agent or any Lender reasonably may require.
(i) The Confirmation Order shall have been entered by the Bankruptcy Court and shall have become final and non-appealable.
(j) After giving effect to the Closing Date, the Plan Effective Date shall have occurred.
(k) Substantially concurrently with the Closing Date, all principal, premium, if any, interest, fees and other amounts due or outstanding under the DIP Credit Agreement shall have been paid in full, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, all pursuant to documentation in form and substance satisfactory to the Administrative Agent and the Lenders, and the Administrative Agent shall have received reasonably satisfactory evidence thereof. Without limiting a certificate attesting to the generality Solvency of the provisions Company and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transactions in the form of Exhibit D, dated as of the last paragraph Closing Date and executed by a Financial Officer 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 Company;
(g) the Specified Representations and Investment Agreements Representations shall be deemed true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) on the Closing Date (unless such Specified Representations relate to an earlier date, in which case, such Specified Representations shall be true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) as of such earlier date;
(h) the Administrative Agent and the Arranger shall have consented toreceived:
(i) with respect to the Company and its Subsidiaries, approved or accepted or (i) audited consolidated balance sheets and related statements of comprehensive income (loss), stockholder’s equity and cash flows for the three most recently completed fiscal years ended at least 60 days prior to be satisfied withthe Closing Date (the “Company Audited Financial Statements”) and (ii) unaudited consolidated balance sheets and related unaudited statements of comprehensive income and cash flows for each interim fiscal quarter ended since the last audited financial statements and at least 40 days prior to the Closing Date (the “Company Interim Financial Statements”); provided that filing of the required financial statements on Form 10-K and Form 10-Q by the Company will satisfy the foregoing requirements;
(ii) with respect to the Target and its Subsidiaries, (i) audited consolidated balance sheets and related statements of comprehensive income(loss), stockholder’s equity and cash flows for the three most recently completed fiscal years ended at least 91 days prior to the Closing Date (the “Target Audited Financial Statements”) and (ii) unaudited consolidated balance sheets and related unaudited statements of comprehensive income (loss) and cash flows for each document or other matter interim fiscal quarter ended since the last audited financial statements and at least 46 days prior to the Closing Date (the “Target Interim Financial Statements”); provided that filing of the required thereunder to be consented to or approved financial statements on Form 40-F and Form 6-K by or acceptable or satisfactory to a Lender unless the Target will satisfy the foregoing requirements;
(h) the Administrative Agent shall have received notice from such Lender a Borrowing Request in accordance with Section 2.03; and
(i) the Company shall have paid, by wire transfer of immediately available funds, all reasonable and documented in reasonable detail costs, fees, out-of-pocket expenses, compensation and other amounts then due and payable as previously agreed in the Commitment Letter and Fee Letter, in the case of the costs and out-of-pocket expenses, to the extent invoiced at least three Business Days prior to the proposed Closing Date specifying its objection theretoDate.
Appears in 1 contract
Sources: Bridge Credit Agreement (Constellation Brands, Inc.)
Conditions to the Closing Date. The effectiveness obligation of this Agreement each Lender to make a Loan on the Closing Date is subject solely to the satisfaction or waiver accordance with Section 11.01 of the following conditions precedent:
(a) The Administrative Agent’s receipt of executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerEffective Date shall have occurred.
(b) All fees required to be paid to the Administrative Agent and the Lenders on or before the Closing Date The Acquisition shall have been paid consummated (or shall be consummated substantially concurrently with the closing hereunder) in accordance with the Acquisition Agreement and all fees required to be paid the Acquisition Agreement shall not have been amended or modified, and no condition shall have been waived or consent granted by the Company, in each case, in any respect that is materially adverse to the Lenders or the Arrangers without the Arrangers’ prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed (it being understood and agreed that (i) any decrease in the aggregate cash and stock consideration set forth in the Acquisition Agreement (such aggregate consideration, the “Acquisition Consideration”) in excess of 10% shall be deemed materially adverse to the Lenders and the Arrangers, (ii) any decrease in the total Acquisition Consideration equal to or less than 10% shall be deemed not materially adverse to the Lenders and the Arrangers to the extent that the cash portion of such decrease is applied to reduce the Commitments on a dollar-for-dollar basis and (iii) any increase in Acquisition Consideration that is not funded with equity (or before proceeds of equity) or cash on hand shall be deemed to be materially adverse to the Closing Date shall Lenders and the Arrangers); provided that the Arrangers will be deemed to have been paidconsented to any such amendment, modification, waiver or consent unless they object thereto in writing (including via email) within ten (10) Business Days of receipt of written notice of such amendment, modification, waiver or consent.
(c) The Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent and the Lenders (directly to such counsel if requested by the Administrative Agent or the Lenders, as applicable) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Lenders, as applicable)[Reserved].
(d) The representations Acquisition Agreement Representations and warranties of the Borrower and each other Loan Party contained in Article V Specified Representations shall be true and correct on in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to such materiality qualification) as of the Closing Date, Date (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for representations and warranties that are already qualified by materiality, which representations and warranties shall be true and correct in all respects after giving effect to such materiality qualification) as of such earlier date).
(e) No Event of Default shall exist on have occurred or be continuing under Section 8.01(a) or 8.01(f) (solely in respect of the Closing DateCompany).
(f) All consentsExcept as set forth in the Disclosure Schedules to the Acquisition Agreement as in effect on July 25, licenses2021, approvals, waivers, acknowledgements and other agreements required in connection with since the execution, delivery and performance by such Loan Party, and the validity against such Loan Party, date of the Loan Documents delivered on the Closing Date to which it is a party Acquisition Agreement, there shall be in full force and effectnot have been an Acquired Business Material Adverse Effect.
(g) The Administrative Agent shall have received a solvency certificate from the chief financial officer or principal accounting officer of the Company in the form attached hereto as Exhibit E.
(h) The Administrative Agent shall have received a Committed Loan Notice in accordance with the requirements hereof.
(i) The Administrative Agent, the Lenders and the Arrangers shall have received all fees and expenses due and payable on or prior to the Closing Date which are required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least 3 three Business Days prior to the Closing Date, including reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Company hereunder.
(j) At least three (3) Business Days prior to the Closing Date, the Company shall have provided to the Administrative Agent the documentation and other customary information reasonably requested by the Administrative Agent or any Lender not less than ten (10) Business Days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors required under in order to comply with applicable “know your customer” and anti-money laundering rules and regulationslaw, including the USA PATRIOT Act that has been Patriot Act. If the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, each Lender, to the extent requested by the Administrative Agent in writing at least 10 such Lender not less than ten (10) Business Days prior to the Closing Date.
(h) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by have received a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, Beneficial Ownership Certification in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory relation to the Administrative Agent and each of the Lenders:
(i) executed counterparts of the Guaranty, in form and substance satisfactory to the Lenders, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) executed counterparts of the ABL Credit Agreement, in form and substance satisfactory to the Lenders duly executed by the parties thereto;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Lenders may 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;
(iv) such documents and certifications as the Lenders may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of (i) Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇, P.C., Colorado counsel to the Loan Parties, and (iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, New Mexico counsel to the Loan Parties, in each case addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.01(d) and (e) have been satisfied;
(vii) a financial forecast of the Borrower and its Subsidiaries on a consolidated basis prepared by management of the Borrower, including consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on an annual basis for each of the Borrower’s fiscal years 2016 through and including 2021;
(viii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(ix) executed counterparts of the Intercreditor Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(x) executed counterparts of the Security Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties 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) proper UCC financing statements in form appropriate for filing in all jurisdictions that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Lenders may deem necessary or desirable in order to cause the Term Loan Priority Collateral, subject to Section 6.12(f), to be subject to a perfected, first priority Lien in favor of the Administrative Agent for the benefit of the Secured Parties (prior to all other Liens other than Liens permitted pursuant to Section 7.01) as determined by the Lenders in their reasonable discretion, and
(D) the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement and in form and substance satisfactory to the Lenders) required pursuant to the Security Agreement (except to the extent otherwise provided in the Intercreditor Agreement).
(xi) intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case in form and substance satisfactory to the Lenders and as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken;
(xii) executed counterparts of the Intercompany Note, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(xiii) certificates attesting to the Solvency of (i) the Borrower and its Subsidiaries (individually and in the aggregate on a consolidated basis) and (ii) each of the Borrower, Basic Energy Services GP, LLC, Basic Energy Services LP, LLC, Basic Energy Services, L.P., and ▇▇▇▇▇▇ Industries, Inc. individually, before and after giving effect to the transactions contemplated by the Plan of Reorganization on the Closing Date and the payment of fees and expenses in connection therewith, from its chief financial officer;
(xiv) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral; and
(xv) such other certificates or documents as the Administrative Agent or any Lender reasonably may require.
(i) The Confirmation Order shall have been entered by the Bankruptcy Court and shall have become final and non-appealable.
(j) After giving effect to the Closing Date, the Plan Effective Date shall have occurredCompany.
(k) Substantially concurrently with the Closing Date, all principal, premium, if any, interest, fees and other amounts due or outstanding under the DIP Credit Agreement shall have been paid in full, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, all pursuant to documentation in form and substance satisfactory to the Administrative Agent and the Lenders, and the The Administrative Agent shall have received reasonably satisfactory evidence thereofa certificate, dated the Closing Date and signed by the President or a Vice President of the Company, or a Financial Officer, certifying as to the satisfaction of the conditions precedent in Section 4.02(b), 4.02(d), 4.02(e) and 4.02(f). Without limiting the generality of the provisions of the last paragraph of Section 9.039.04, for purposes of determining compliance with the conditions specified in this Section 4.014.02, 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 proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions to the Closing Date. The effectiveness of this Agreement on Lenders’ obligations to make the Closing Date is Loans shall be subject only to the satisfaction all of the following conditions precedentprecedent having been satisfied (or waived in accordance with Section 10.01) on or prior to the Commitment Termination Date:
(a) The Administrative Agent’s receipt of executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower.Effective Date shall have occurred;
(b) All fees required to be paid to the Administrative Agent and the Lenders on or before the Closing Date Pinnacle Acquisition shall have been paid and all fees required (or, substantially contemporaneously with the making of the Loans, shall be) consummated pursuant to the Pinnacle Acquisition Agreement without giving effect to any modifications, consents, amendments or waivers thereto that, taken as a whole, are materially adverse to the interests of the Lenders, unless the Syndication Agent shall have provided its written consent thereto (it being understood that any change in the purchase consideration of less than 10.0% in respect of the Pinnacle Acquisition will be deemed not to be paid materially adverse to the Lenders on or before the Closing Date shall have been paid.Lenders);
(c) The Borrower there shall not have paid all feesoccurred: (a) from December 31, charges and disbursements of counsel 2017 through to the Administrative Agent and the Lenders (directly to such counsel if requested by the Administrative Agent or the Lenders, as applicable) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Lenders, as applicable).
(d) The representations and warranties date of the Borrower and each other Loan Party contained in Article V shall be true and correct on and as Pinnacle Acquisition Agreement, any event, change, effect, development, state of the Closing Datefacts, except to the extent that such representations and warranties specifically refer to an earlier datecondition, in which case they shall be true and correct as of such earlier date.
(e) No Default shall exist on the Closing Date.
(f) All consentscircumstance or occurrence, licenses, approvals, waivers, acknowledgements and other agreements required in connection with the execution, delivery and performance by such Loan Party, and the validity against such Loan Party, of the Loan Documents delivered on the Closing Date to which it is a party shall be in full force and effect.
(g) The Administrative Agent shall have received at least 3 Business Days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act that has been requested by the Administrative Agent in writing at least 10 Business Days prior to the Closing Date.
(h) The Administrative Agent’s receipt of the following, each of which shall be originals individually or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case aggregate with all other events, changes, effects, developments, states of certificates facts, conditions, circumstances and occurrences in the business, results of governmental officialsoperations, a recent date before properties, assets, liabilities, operations or financial condition of Pinnacle that, individually or in the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of the Guarantyaggregate, in form and substance satisfactory to the Lendershas had, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) executed counterparts of the ABL Credit Agreement, in form and substance satisfactory to the Lenders duly executed by the parties thereto;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Lenders may 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;
(iv) such documents and certifications as the Lenders may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not would reasonably be expected to have a an Acquired Business Material Adverse Effect, except as set forth in the (i) reports publicly filed with the SEC prior to the date of the Pinnacle Acquisition Agreement (excluding, in each case, any disclosures set forth in any risk factor section or in any other section to the extent they are forward-looking statements or cautionary, predictive or forward-looking in nature) or (ii) corresponding sections or subsections of the Company Disclosure Letter (as defined in the Pinnacle Acquisition Agreement in effect as of June 26, 2018) (it being agreed that disclosure of any item in any section or subsection of the Company Disclosure Letter shall be deemed disclosure with respect to any other section or subsection of the Company Disclosure Letter to the extent that the relevance of such item to such section or subsection is reasonably apparent on its face), or (b) from the date of the Pinnacle Acquisition Agreement, any event, change, effect, development, state of facts, condition, circumstance or occurrence that, individually or in the aggregate, has had, or would reasonably be expected to have, an Acquired Business Material Adverse Effect;
(vd) a favorable opinion of each of (i) Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇, P.C., Colorado counsel to the Loan Parties, and (iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, New Mexico counsel to the Loan Parties, in each case addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.01(d) and (e) have been satisfied;
(vii) a financial forecast of the Borrower and its Subsidiaries on a consolidated basis prepared by management of the Borrower, including consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on an annual basis for each of the Borrower’s fiscal years 2016 through and including 2021;
(viii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(ix) executed counterparts of the Intercreditor Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(x) executed counterparts of the Security Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties 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) proper UCC financing statements in form appropriate for filing in all jurisdictions that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Lenders may deem necessary or desirable in order to cause the Term Loan Priority Collateral, subject to Section 6.12(f), to be subject to a perfected, first priority Lien in favor of the Administrative Agent for the benefit of the Secured Parties (prior to all other Liens other than Liens permitted pursuant to Section 7.01) as determined by the Lenders in their reasonable discretion, and
(D) the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement and in form and substance satisfactory to the Lenders) required pursuant to the Security Agreement (except to the extent otherwise provided in the Intercreditor Agreement).
(xi) intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case in form and substance satisfactory to the Lenders and as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken;
(xii) executed counterparts of the Intercompany Note, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(xiii) certificates attesting to the Solvency of (i) the Borrower and its Subsidiaries (individually and in the aggregate on a consolidated basis) and (ii) each of the Borrower, Basic Energy Services GP, LLC, Basic Energy Services LP, LLC, Basic Energy Services, L.P., and ▇▇▇▇▇▇ Industries, Inc. individually, before and after giving effect to the transactions contemplated by the Plan of Reorganization on the Closing Date and the payment of fees and expenses in connection therewith, from its chief financial officer;
(xiv) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral; and
(xv) such other certificates or documents as the Administrative Agent or any Lender reasonably may require.
(i) The Confirmation Order shall have been entered by the Bankruptcy Court and shall have become final and non-appealable.
(j) After giving effect to the Closing Date, the Plan Effective Date shall have occurred.
(k) Substantially concurrently with the Closing Date, all principal, premium, if any, interest, fees and other amounts due or outstanding under the DIP Credit Agreement shall have been paid in full, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, all pursuant to documentation in form and substance satisfactory to the Administrative Agent and the Lenders, and the Administrative Agent shall have received reasonably satisfactory evidence thereof. Without limiting (except to the generality extent not required by the Administrative Agent) (i) audited financial statements of the provisions Company for each 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 its three most recent fiscal years ended at least 60 days prior to the proposed Closing Date specifying Date; (ii) unaudited financial statements of the Company for any quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of its objection thereto.most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date; and
Appears in 1 contract
Conditions to the Closing Date. The effectiveness obligations of this Agreement the Lenders to make Loans on the Closing Date is are subject to the satisfaction each of the following conditions precedentbeing satisfied (or waived in accordance with Section 9.02) on or prior to the Closing Date:
(a) The Administrative Agent’s receipt of executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower.
(b) All fees required to be paid to the Administrative Agent and the Lenders on or before the Closing Effective Date shall have been paid and all fees required to be paid to the Lenders on occurred or before the Closing Date shall have been paid.
(c) The Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent and the Lenders (directly to such counsel if requested by the Administrative Agent or the Lenders, as applicable) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Lenders, as applicable).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Article V shall be true and correct on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date.
(e) No Default shall exist on occur simultaneously with the Closing Date.
(fb) All consents, licenses, approvals, waivers, acknowledgements and other agreements required in connection with the execution, delivery and performance by such Loan Party, and the validity against such Loan Party, of the Loan Documents delivered on the Closing Date to which it is a party shall be in full force and effect.
(g) The Administrative Agent shall have received at least 3 Business Days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act that has been requested by the Administrative Agent in writing at least 10 Business Days prior to the Closing Date.
(h) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of the Guaranty, in form and substance satisfactory to the Lenders, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) executed counterparts of the ABL Credit Agreement, in form and substance satisfactory to the Lenders duly executed by the parties thereto;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Lenders may 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;
(iv) such documents and certifications as the Lenders may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable legal opinion of each of (i) Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇LLP, P.C., Colorado U.S. counsel to the Loan PartiesBorrower (in the same form as that delivered to the administrative agent under the Senior Credit Agreement in connection with the effectiveness of the credit facilities thereunder as appropriately modified to reflect this Agreement and the parties hereto);
(c) substantially concurrently with the funding of the Loans on the Closing Date, the Canopy Investment shall have been consummated in accordance with the Investment Agreements, and the Investment Agreements shall not have been amended or modified by the Company, and no condition shall have been waived or consent granted by the Company, in any respect that is materially adverse to the Lenders or the Arrangers without the Arrangers’ prior written consent (it being understood and agreed that (i) any amendment, modification, waiver or consent that results in a change to the definition of the term “Material Adverse Effect” (as defined in the Subscription Agreement) shall be deemed to be materially adverse to the Lenders and the Arrangers, and (iiiii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP(a) any decrease in the Investment Consideration (as defined in the Subscription Agreement) that is accompanied by a dollar-for-dollar reduction in Commitments and (b) any increase in the Investment Consideration, New Mexico counsel to together with any other increases since the Loan Partiesdate of the Commitment Letter which does not exceed 5% of the Investment Consideration, in each case addressed shall be deemed not to be materially adverse to the Lenders);
(d) since March 31, 2018, no Material Adverse Effect (as defined in the Subscription Agreement as in effect on the date of the Commitment Letter) shall have occurred;
(e) the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(vi) shall have received a certificate substantially in the form of Exhibit G signed by a Responsible Officer of the Borrower Company with specific knowledge about the subject matter thereof, (i) certifying that the conditions specified in Sections 4.01(d4.02(c), (d) and (eg) have been satisfied;
(vii) a financial forecast of the Borrower and its Subsidiaries on a consolidated basis prepared by management of the Borrower, including consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on an annual basis for each of the Borrower’s fiscal years 2016 through and including 2021;
(viii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(ix) executed counterparts of the Intercreditor Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(x) executed counterparts of the Security Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties 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) proper UCC financing statements in form appropriate for filing in all jurisdictions that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Lenders may deem necessary or desirable in order to cause the Term Loan Priority Collateral, subject to Section 6.12(f), to be subject to a perfected, first priority Lien in favor of the Administrative Agent for the benefit of the Secured Parties (prior to all other Liens other than Liens permitted pursuant to Section 7.01) as determined by the Lenders in their reasonable discretion, and
(D) the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement and in form and substance satisfactory to the Lenders) required pursuant to the Security Agreement (except to the extent otherwise provided in the Intercreditor Agreement).
(xi) intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case in form and substance satisfactory to the Lenders and as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken;
(xii) executed counterparts of the Intercompany Note, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(xiii) certificates attesting to the Solvency of (i) the Borrower and its Subsidiaries (individually and in the aggregate on a consolidated basis) and (ii) each of setting forth the Borrower, Basic Energy Services GP, LLC, Basic Energy Services LP, LLC, Basic Energy Services, L.P., and ▇▇▇▇▇▇ Industries, Inc. individually, before and after giving effect to the transactions contemplated by the Plan of Reorganization current Debt Ratings on the Closing Date and the payment of fees and expenses in connection therewith, from its chief financial officer;
(xiviii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties certain matters related to the business of the Loan Parties that constitute Collateral; andCanopy set forth therein;
(xvf) such other certificates or documents as the Administrative Agent or any Lender reasonably may require.
(i) The Confirmation Order shall have been entered by the Bankruptcy Court and shall have become final and non-appealable.
(j) After giving effect to the Closing Date, the Plan Effective Date shall have occurred.
(k) Substantially concurrently with the Closing Date, all principal, premium, if any, interest, fees and other amounts due or outstanding under the DIP Credit Agreement shall have been paid in full, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, all pursuant to documentation in form and substance satisfactory to the Administrative Agent and the Lenders, and the Administrative Agent shall have received reasonably satisfactory evidence thereof. Without limiting a certificate attesting to the generality Solvency of the provisions Company and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transactions in the form of Exhibit D, dated as of the last paragraph Closing Date and executed by a Financial Officer 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 Company;
(g) the Specified Representations and Investment Agreements Representations shall be deemed true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) on the Closing Date (unless such Specified Representations relate to an earlier date, in which case, such Specified Representations shall be true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) as of such earlier date;
(h) the Administrative Agent and the Arrangers shall have consented toreceived:
(i) with respect to the Company and its Subsidiaries, approved or accepted or (i) audited consolidated balance sheets and related statements of comprehensive income (loss), stockholder’s equity and cash flows for the three most recently completed fiscal years ended at least 60 days prior to be satisfied withthe Closing Date (the “Company Audited Financial Statements”) and (ii) unaudited consolidated balance sheets and related unaudited statements of comprehensive income and cash flows for each interim fiscal quarter ended since the last audited financial statements and at least 40 days prior to the Closing Date (the “Company Interim Financial Statements”); provided that filing of the required financial statements on Form 10-K and Form 10-Q by the Company will satisfy the foregoing requirements;
(ii) with respect to the Target and its Subsidiaries, (i) audited consolidated balance sheets and related statements of comprehensive income(loss), stockholder’s equity and cash flows for the three most recently completed fiscal years ended at least 91 days prior to the Closing Date (the “Target Audited Financial Statements”) and (ii) unaudited consolidated balance sheets and related unaudited statements of comprehensive income (loss) and cash flows for each document or other matter interim fiscal quarter ended since the last audited financial statements and at least 46 days prior to the Closing Date (the “Target Interim Financial Statements”); provided that filing of the required thereunder to be consented to or approved financial statements on Form 40-F and Form 6-K by or acceptable or satisfactory to a Lender unless the Target will satisfy the foregoing requirements;
(i) the Administrative Agent shall have received notice from such Lender a Borrowing Request in accordance with Section 2.03; and
(j) the Company shall have paid, by wire transfer of immediately available funds, all reasonable and documented in reasonable detail costs, fees, out-of-pocket expenses, compensation and other amounts then due and payable as previously agreed in the Commitment Letter and Fee Letter, in the case of the costs and out-of-pocket expenses, to the extent invoiced at least three Business Days prior to the proposed Closing Date specifying its objection theretoDate.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Constellation Brands, Inc.)
Conditions to the Closing Date. The effectiveness of this Agreement on the Closing Date is Commitments and the obligation of any Lender to make a Loan are subject to the satisfaction (or waiver in accordance with Section 9.05) solely of the following conditions precedentconditions:
(a) The Administrative Agent’s receipt of executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerEffective Date shall have occurred.
(b) All receipt by the Administrative Agent of:
(i) a Notice of Borrowing as required by Section 2.02; and
(ii) a Solvency Certificate.
(c) all fees and expenses required to be paid to the Administrative Agent and the Lenders on or before the Closing Date shall have (in the case of expenses, for which the Borrower has been paid and all fees required to be paid billed at least two (2) Domestic Business Days prior to the Lenders on or before Closing Date), including the Closing Date shall have been paid.
(c) The Borrower shall have paid all fees, charges reasonable and disbursements documented fees and expenses of one counsel to for the Administrative Agent and the Lenders Lead Arranger shall have been paid;
(directly d) the Acquisition shall have been consummated or will be consummated concurrently with the funding of the Loans in accordance with the Acquisition Agreement and no amendment, modification, consent or waiver of any term thereof or any condition to the Buyer’s obligation to consummate the Acquisition thereunder (other than any such counsel if requested by amendment, modification, consent or waiver that is not materially adverse to any interest of the Administrative Agent Lenders) shall have been made or granted, as the case may be, without the prior written consent of the Lead Arranger (it being understood that (i) any change in the consideration payable or the Lendersprice (excluding any price decrease of less than 10% of the consideration paid or payable or any price increase funded with equity of the Borrower less than such 10%), as applicable(ii) any material change to the extent invoiced structure of the Acquisition and (iii) any change in the definition of “Material Adverse Effect” or any lender protection provisions set forth in the Acquisition Agreement on September 20, 2018, in each case will be deemed to be materially adverse to the interests of the Lenders and will require the prior written consent of the Lead Arranger);
(e) except as set forth in Section 3.8 of the Seller Disclosure Schedule (as defined in the Acquisition Agreement on September 20, 2018) as in effect on September 20, 2018, since December 31, 2017 there shall not have been any change, event or development that would, individually or in the aggregate, have a Target Material Adverse Effect;
(f) At the time of and upon giving effect to or the borrowing and application of the Loans on the Closing Date, plus such additional amounts (i) each of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Acquisition Representations and the Administrative Agent and the Lenders, as applicable).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Article V Specified Representations shall be true and correct on and as (ii) there shall not exist any Default or Event of the Closing DateDefault under clauses (a), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as (g) or (h) of such earlier date.
(e) No Default shall exist on the Closing Date.
(f) All consents, licenses, approvals, waivers, acknowledgements and other agreements required in connection with the execution, delivery and performance by such Loan Party, and the validity against such Loan Party, of the Loan Documents delivered on the Closing Date to which it is a party shall be in full force and effect.Section 6.01;
(g) The Administrative Agent shall have received at least 3 Business Days prior to a certificate dated the Closing Date all documentation and other information about from a Responsible Officer of the Borrower confirming the satisfaction of the conditions precedent described in clauses (d), (e) and the Guarantors required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act that has been requested by the Administrative Agent in writing at least 10 Business Days prior to the Closing Date.(f) of this Section 3.02; and
(h) The Administrative Agent’s receipt Agent shall have received (i) audited consolidated financial statements of the following, Borrower for each of which shall be originals or telecopies the last three full fiscal years ended more than 90 days prior to the Closing Date and (followed promptly by originalsii) unless otherwise specified, each properly executed by a Responsible Officer unaudited consolidated financial statements of the signing Loan Party, Borrower for each dated subsequent fiscal quarter ended more than 45 days prior to the Closing Date (orand for the corresponding period(s) of the prior fiscal year), all of which shall have been reviewed by the independent accountants for the Borrower as provided in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to Statement on Auditing Standards No. 100; provided that the Administrative Agent and each hereby acknowledges that it has received audited consolidated financial statements of the Lenders:
Borrower in respect of the immediately preceding clause (i) executed counterparts for the fiscal years ended 2015, 2016 and 2017 and the unaudited consolidated financial statements of the Guaranty, Borrower in form and substance satisfactory to respect of the Lenders, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
immediately preceding clause (ii) executed counterparts of the ABL Credit Agreement, in form and substance satisfactory to the Lenders duly executed by the parties thereto;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Lenders may 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;
(iv) such documents and certifications as the Lenders may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of (i) Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇, P.C., Colorado counsel to the Loan Parties, and (iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, New Mexico counsel to the Loan Parties, in each case addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.01(d) and (e) have been satisfied;
(vii) a financial forecast of the Borrower and its Subsidiaries on a consolidated basis prepared by management of the Borrower, including consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on an annual basis for each of the Borrower’s fiscal years 2016 through and including 2021;
(viii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(ix) executed counterparts of the Intercreditor Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(x) executed counterparts of the Security Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties 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) proper UCC financing statements in form appropriate for filing in all jurisdictions that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Lenders may deem necessary or desirable in order to cause the Term Loan Priority Collateral, subject to Section 6.12(f), to be subject to a perfected, first priority Lien in favor of the Administrative Agent for the benefit of the Secured Parties (prior to all other Liens other than Liens permitted pursuant to Section 7.01) as determined by the Lenders in their reasonable discretionfiscal quarters ending March 31, and
(D) the Account Control Agreements 2018, June 30, 2018 and the Securities Account Control Agreement (in each caseSeptember 30, as defined in the Security Agreement and in form and substance satisfactory to the Lenders) required pursuant to the Security Agreement (except to the extent otherwise provided in the Intercreditor Agreement).
(xi) intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case in form and substance satisfactory to the Lenders and as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken;
(xii) executed counterparts of the Intercompany Note, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(xiii) certificates attesting to the Solvency of (i) the Borrower and its Subsidiaries (individually and in the aggregate on a consolidated basis) and (ii) each of the Borrower, Basic Energy Services GP, LLC, Basic Energy Services LP, LLC, Basic Energy Services, L.P., and ▇▇▇▇▇▇ Industries, Inc. individually, before and after giving effect to the transactions contemplated by the Plan of Reorganization on the Closing Date and the payment of fees and expenses in connection therewith, from its chief financial officer;
(xiv) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral; and
(xv) such other certificates or documents as the Administrative Agent or any Lender reasonably may require.
(i) The Confirmation Order shall have been entered by the Bankruptcy Court and shall have become final and non-appealable.
(j) After giving effect to the Closing Date, the Plan Effective Date shall have occurred.
(k) Substantially concurrently with the Closing Date, all principal, premium, if any, interest, fees and other amounts due or outstanding under the DIP Credit Agreement shall have been paid in full, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, all pursuant to documentation in form and substance satisfactory to the Administrative Agent and the Lenders, and the Administrative Agent shall have received reasonably satisfactory evidence thereof2018. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for For purposes of determining compliance with the conditions specified in this Section 4.01Sections 3.01 and 3.02, 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 such document has been posted to the Lenders and the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date or Closing Date Date, as applicable, specifying its objection thereto.
Appears in 1 contract
Conditions to the Closing Date. The effectiveness obligation of this Agreement each Lender (i) to make the Loans on the Closing Date is subject to the satisfaction (or waiver by the Initial Arrangers) of the following conditions precedent, and only the following conditions precedent, on the Closing Date, or (ii) to pre-fund the Loans on the Pre-Closing Funding Date pursuant to Section 2.2(c)(ii) is subject to the satisfaction (or waiver by the Initial Arrangers) of the following conditions precedent, and only the following conditions precedent (in each case in this clause (ii), other than the Black Knight Acquisition Related Conditions), on the Pre-Closing Funding Date:
(a) The Administrative Agent’s receipt Borrowing of executed counterparts such Loans shall occur on the Black Knight Acquisition Date, which shall be on or before the earlier to occur of this (i) the termination or expiration of the Black Knight Acquisition Agreement sufficient in number for distribution to accordance with its terms, and (ii) the Administrative Agent“Outside Date” (as defined in the Black Knight Acquisition Agreement as in effect on May 4, each Lender and 2022) as such date may be extended in accordance with the Borrower.Black Knight Acquisition Agreement as in effect on May 4, 2022;
(b) All fees required to be paid to Since the Administrative Agent and date of the Lenders on or before the Closing Date Black Knight Acquisition Agreement, there shall not have been paid and all fees required any event, circumstance, occurrence, effect, fact, development or change that has had, or would reasonably be expected to be paid to have, individually or in the Lenders on or before aggregate, a “Material Adverse Effect” (as defined in the Closing Date shall have been paid.Black Knight Acquisition Agreement);
(c) The Borrower Initial Arrangers shall have paid all fees, charges and disbursements received a certificate of counsel the chief financial officer of the Borrower as to the Administrative Agent and the Lenders (directly to such counsel if requested by the Administrative Agent or the Lenders, as applicable) to the extent invoiced prior to or on the Closing Date, plus such additional amounts solvency of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and its Subsidiaries, on a consolidated basis, after giving effect to the Administrative Agent and Black Knight Transactions, in the Lenders, as applicable).form of Exhibit F;
(d) The Black Knight Acquisition shall have been consummated substantially concurrently with the Borrowing of such Loans, and substantially in accordance with the terms and conditions of the Black Knight Acquisition Agreement without giving effect to any waiver, modification or consent thereunder that is materially adverse to the Lenders or the Initial Arrangers (as reasonably determined by the Initial Arrangers) unless approved by the Initial Arrangers (which approval shall not be unreasonably withheld, conditioned or delayed), it being understood and agreed that, without limiting the generality of the foregoing, (1) any decrease in the Black Knight Acquisition consideration shall not be materially adverse to the Lenders or the Initial Arrangers so long as such decrease is allocated to reduce the Black Knight Borrower Stock Contribution and the Black Knight Bridge Facility on a pro rata, dollar-for-dollar basis, (2) any increase in the purchase price shall not be materially adverse to the Lenders or the Initial Arrangers so long as such increase is funded solely by an increase in the amount of the Black Knight Borrower Stock Contribution and (3) any change to the definition of “Material Adverse Effect” or the “Xerox” provisions shall be deemed to be a modification which is materially adverse to the Lenders and the Initial Arrangers;
(e) The representations and warranties made by or with respect to Black Knight and its Subsidiaries in the Black Knight Acquisition Agreement as are material to the interests of the Lenders (the “Black Knight Acquisition Agreement Representations”) shall be true and correct, but only to the extent that the Borrower or any of its Affiliates has the right to terminate its or its Subsidiaries’ obligations under the Black Knight Acquisition Agreement, or to decline to consummate the Black Knight Acquisition pursuant to the Black Knight Acquisition Agreement, as result of a breach of any such representations and warranties or any such representations and warranties not being accurate (in each case, determined without regard to any notice requirement). The representations and warranties of the Borrower set forth in Sections 4.1(i), 4.1(ii) (but only with respect to the Borrower’s power and each other Loan Party contained in Article V authority to execute, deliver and perform the Credit Documents to which it is a party), 4.2, 4.3 (but only with respect to clause (i) therein), 4.7, 4.11, 4.12 (but only with respect to the Borrower’s use of proceeds) and 4.13 shall be true and correct on in all material respects (except that any representation and warranty qualified as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they materiality or Material Adverse Effect shall be true and correct as of such earlier date.
(e) No Default shall exist on the Closing Date.in all respects);
(f) All consentsNo Event of Default under Section 8.1(a), licenses8.1(f) or 8.1(g), approvalsnor any “event of default” or similar condition under the Black Knight Bridge Facility, waiversthe Revolving Credit Agreement (unless terminated on or prior to the Closing Date), acknowledgements or any other Indebtedness in excess of the Threshold Amount in the aggregate (but, in each case, only insofar as such “event of default” or similar condition relates to bankruptcy or insolvency, or the nonpayment of principal, interest or fees), shall have occurred and other agreements required in connection with be continuing on such date, both immediately before and immediately after giving effect to the executionLoans to be made on such date;
(g) The Initial Arrangers shall have received (i) copies of audited consolidated balance sheets and related statements of income, delivery stockholders’ equity and performance by cash flows for the Borrower and its subsidiaries for the three fiscal years most recently ended at least 90 days prior to the Closing Date (or such Loan Partylesser time applicable to the Borrower as the annual report deadline under the Securities Exchange Act of 1934, as amended, and the validity against such Loan Partyrules and regulations thereunder) and interim unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows for each subsequent quarterly period after the date of the Loan Documents delivered on last audited financial statements pursuant to this clause (i) (other than the fourth fiscal quarter of any fiscal year) ended at least 45 days prior to the Closing Date (or such lesser time applicable to which the Borrower as the quarterly report deadline under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder) (it is being understood and acknowledged by the Initial Arrangers that the audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows for the Borrower and its subsidiaries filed with the SEC, as of the date hereof, for the three years ended December 31 2019, 2020 and 2021 and for the three months ended March 31, 2022 satisfy the obligation to provide such financial information for the periods covered by such filings), and (ii) copies of all financial statements of Black Knight delivered to the Borrower pursuant to the Black Knight Acquisition Agreement;
(h) On the Black Knight Acquisition Date, after giving effect to the Black Knight Transactions, the obligations of Black Knight and its subsidiaries under that certain Second Amended and Restated Lien Credit and Guaranty Agreement, dated as of March 10, 2021 (as amended, restated, supplemented or otherwise modified from time to time), among Black Knight Infoserv, LLC, a Delaware limited liability company (the “Black Knight Borrower”), Black Knight Financial Services, LLC, a Delaware limited liability company, each subsidiary of the Black Knight Borrower from time to time party thereto as guarantors, the lenders from time party thereto, JPMorgan Chase Bank, N.A., as the administrative agent, a swing line lender and an L/C issuer, Bank of America, N.A., as a swing line lender and an L/C issuer, and U.S. Bank National Association, as a swing line lender an L/C issuer, shall be have been repaid in full force and effect.all guarantees and security interests shall have been terminated and released;
(gi) The Administrative Agent shall have received a Notice of Borrowing in accordance with Section 2.2(b) and, if any SOFR Loans are to be borrowed on the Closing Date (or pre-funded on the Pre-Closing Funding Date) and such date is prior to the third Business Day after the Effective Date, the Administrative Agent shall have received, three Business Days prior to such date, a customary pre-funding SOFR indemnity letter from the Borrower;
(j) The aggregate principal of such Loans shall not exceed the aggregate Commitments at such time (determined without giving effect to such Loans);
(k) All fees and (to the extent invoiced at least 3 two Business Days prior to the Closing Date) expenses due to the Initial Arrangers, the Administrative Agent and the Lenders required to be paid on the Closing Date (including the fees and expenses of counsel for the Initial Arrangers and the Administrative Agent) will have been paid;
(l) At least three Business Days prior to the Closing Date all (or, if a Pre-Closing Funding Election has been made, the Pre-Closing Funding Date), the Borrower will have provided the documentation and other information about to the Borrower and the Guarantors Lenders that is required by regulatory authorities under applicable “know your customer” and anti-money money-laundering rules and regulations, including including, without limitation, the USA PATRIOT Act and the Beneficial Ownership Regulation, but only to the extent that has been the Lenders shall have requested by the Administrative Agent in writing such documentation and other information at least 10 Business Days prior to the Closing Date.
(h) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, if a recent date before the Pre-Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of the Guaranty, in form and substance satisfactory to the Lenders, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) executed counterparts of the ABL Credit Agreement, in form and substance satisfactory to the Lenders duly executed by the parties thereto;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Lenders may 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;
(iv) such documents and certifications as the Lenders may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of (i) Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇, P.C., Colorado counsel to the Loan Parties, and (iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, New Mexico counsel to the Loan Parties, in each case addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.01(d) and (e) have Funding Election has been satisfied;
(vii) a financial forecast of the Borrower and its Subsidiaries on a consolidated basis prepared by management of the Borrower, including consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on an annual basis for each of the Borrower’s fiscal years 2016 through and including 2021;
(viii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(ix) executed counterparts of the Intercreditor Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(x) executed counterparts of the Security Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties 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) proper UCC financing statements in form appropriate for filing in all jurisdictions that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Lenders may deem necessary or desirable in order to cause the Term Loan Priority Collateral, subject to Section 6.12(f), to be subject to a perfected, first priority Lien in favor of the Administrative Agent for the benefit of the Secured Parties (prior to all other Liens other than Liens permitted pursuant to Section 7.01) as determined by the Lenders in their reasonable discretion, and
(D) the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement and in form and substance satisfactory to the Lenders) required pursuant to the Security Agreement (except to the extent otherwise provided in the Intercreditor Agreement).
(xi) intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case in form and substance satisfactory to the Lenders and as amendedmade, the “Intellectual Property Security Agreement”Pre-Closing Funding Date), duly executed by each Loan Party, together with evidence that all action that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken;
(xii) executed counterparts of the Intercompany Note, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(xiii) certificates attesting to the Solvency of (i) the Borrower and its Subsidiaries (individually and in the aggregate on a consolidated basis) and (ii) each of the Borrower, Basic Energy Services GP, LLC, Basic Energy Services LP, LLC, Basic Energy Services, L.P., and ▇▇▇▇▇▇ Industries, Inc. individually, before and after giving effect to the transactions contemplated by the Plan of Reorganization on the Closing Date and the payment of fees and expenses in connection therewith, from its chief financial officer;
(xiv) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral; and
(xv) such other certificates or documents as the Administrative Agent or any Lender reasonably may require.
(im) The Confirmation Order shall have been entered by the Bankruptcy Court and shall have become final and non-appealable.
(j) After giving effect to the Closing Date, the Plan Effective Date shall have occurred.
(k) Substantially concurrently with the Closing Date, all principal, premium, if any, interest, fees and other amounts due or outstanding under the DIP Credit Agreement shall have been paid in full, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, all pursuant to documentation in form and substance satisfactory to the Administrative Agent and the Lenders, and the Administrative Agent shall have received reasonably satisfactory evidence thereof. 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 proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Intercontinental Exchange, Inc.)
Conditions to the Closing Date. The effectiveness obligation of this Agreement each Lender to fund the Term Loans on the Closing Date is subject to the satisfaction of the following conditions precedentprecedent prior to the Commitment Termination Date:
(a) The Administrative Agent’s receipt of executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerEffective Date shall have occurred.
(b) All fees required the Acquisition and the refinancing of certain existing debt of the Acquired Business shall be consummated substantially on the Closing Date concurrently with the funding of the Term Loans in all material respects in accordance with the Acquisition Agreement, and no provision of the Acquisition Agreement (as in effect on August 19, 2025) shall have been amended or modified by the Borrower, and no condition therein shall have been waived or consent granted by the Borrower, in each case, in any respect that is materially adverse to the Lenders in their capacities as such without the Bridge Lead Arrangers’ prior written consent (which consent shall not be unreasonably withheld or delayed); provided, that (i) any increase or decrease in the purchase price in the Acquisition Agreement shall not be deemed to be paid materially adverse to the interests of the Lenders and shall not require the consent of the Bridge Lead Arrangers if such purchase price increase or decrease (A) does not exceed 12.5 % in aggregate or (B) in the case of a purchase price increase, is in the form of common equity of the Borrower), (ii) any decrease in the cash purchase price in the Acquisition Agreement shall reduce dollar-for-dollar the commitments in respect of the Bridge Facility, (iii) any adjustment to the consideration for the Acquisition in accordance with the determination of the Closing Working Capital, Closing Debt, and Closing Transaction Expenses (each as defined in the Acquisition Agreement as of August 19, 2025) as set forth in the Acquisition Agreement shall not be deemed to be an increase or decrease in the purchase price, (iv) any changes to the definition of Acquisition Material Adverse Effect (as in effect on August 19, 2025) will be deemed to be materially adverse to the Lenders and shall require the consent of the Bridge Lead Arrangers and (v) any amendment or other modification to the provisions of the Acquisition Agreement that are expressly for the benefit of the Financing Sources (as defined therein) will be deemed to be materially adverse to the interest of the Lenders and shall require the consent of the Bridge Lead Arrangers.
(c) since August 19, 2025, no Acquisition Material Adverse Effect shall have occurred that remains ongoing.
(d) the Arrangers shall have received (a) audited consolidated balance sheets and related statements of earnings, shareholders’ equity and cash flows of the Borrower as of and for each of the last three full fiscal years ended at least 90 days prior to the Closing Date and (b) unaudited consolidated balance sheets and related statements of operations, stockholders’ equity and cash flows of the Borrower as of and for each subsequent fiscal quarter (other than any fourth fiscal quarter) ended at least 45 days prior to the Closing Date (and the corresponding period(s) of the prior fiscal year), prepared in accordance with U.S. GAAP (it being understood that, with respect to such financial information for each such fiscal period, such condition shall be deemed satisfied through the public filing of financial statements complying with the foregoing requirements on Form 10-K or Form 10-Q, as the case may be, by the Borrower with the Securities and Exchange Commission (the “SEC”)). The Arrangers hereby acknowledge receipt of the financial statements in the foregoing clause (a) for the fiscal years ended January 31, 2025, February 2, 2024 and February 3, 2023 and in the foregoing clause (b) for the fiscal quarter ended May 2, 2025.
(e) the Arrangers, the Administrative Agent and the Lenders on or before the Closing Date shall have been paid and received all fees and invoiced expenses required to be paid to the Lenders on or before prior to the Closing Date shall have been paid.
(c) The Borrower shall have paid all fees, charges and disbursements of counsel pursuant to the Administrative Agent and the Lenders Fee Letters or this Agreement (directly solely with respect to such counsel if requested by the Administrative Agent or the Lenders, as applicableexpenses) to the extent invoiced at least two business days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Lenders, as applicable).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Article V shall be true and correct on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date.
(e) No Default shall exist on the Closing Date.
(f) All consents, licenses, approvals, waivers, acknowledgements (i) there shall exist no Event of Default solely with respect to (x) Section 8.01(a)(ii) (with respect to non-payment of invoiced fees) or (y) Section 8.01(f) or (g) (in respect of the Borrower); and other agreements required (ii) each of the Acquisition Agreement Representations shall be true and correct in connection with the execution, delivery and performance by such Loan Partyall material respects, and the validity against such Loan Party, each of the Loan Documents delivered Specified Representations shall be true and correct in all material respects, in each case on the Closing Date (except to the extent that any such representations and warranties relate to an earlier date or period, in which it is a party case such representations and warranties shall be have been true and correct in full force all material respects on and effectas of such earlier date or period).
(g) The Administrative Agent shall have received at least 3 Business Days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act that has been requested by the Administrative Agent in writing at least 10 Business Days prior to the Closing Date.
(h) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyOfficer, each dated the Closing Date (or, in the case of certificates of governmental officialsthe Term Loan Notice, a recent date before prior to the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:):
(i) executed counterparts of the Guaranty, in form and substance satisfactory to the Lenders, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) executed counterparts of the ABL Credit Agreement, in form and substance satisfactory to the Lenders duly executed by the parties thereto;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Lenders may 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;
(iv) such documents and certifications as the Lenders may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of (i) Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇, P.C., Colorado counsel to the Loan Parties, and (iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, New Mexico counsel to the Loan Parties, in each case addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.01(d4.02(b), (c) and (ef) have been satisfied;
(viiii) a financial forecast of the Borrower Solvency Certificate; and its Subsidiaries on a consolidated basis prepared by management of the Borrower, including consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on an annual basis for each of the Borrower’s fiscal years 2016 through and including 2021;
(viiiiii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(ix) executed counterparts of the Intercreditor Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(x) executed counterparts of the Security Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties 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) proper UCC financing statements in form appropriate for filing in all jurisdictions that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Lenders may deem necessary or desirable in order to cause the Term Loan Priority Collateral, subject to Section 6.12(f), to be subject to a perfected, first priority Lien in favor of the Administrative Agent for the benefit of the Secured Parties (prior to all other Liens other than Liens permitted pursuant to Section 7.01) as determined by the Lenders in their reasonable discretion, and
(D) the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement and in form and substance satisfactory to the Lenders) required pursuant to the Security Agreement (except to the extent otherwise provided in the Intercreditor Agreement)Notice.
(xi) intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case in form and substance satisfactory to the Lenders and as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken;
(xii) executed counterparts of the Intercompany Note, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(xiii) certificates attesting to the Solvency of (i) the Borrower and its Subsidiaries (individually and in the aggregate on a consolidated basis) and (ii) each of the Borrower, Basic Energy Services GP, LLC, Basic Energy Services LP, LLC, Basic Energy Services, L.P., and ▇▇▇▇▇▇ Industries, Inc. individually, before and after giving effect to the transactions contemplated by the Plan of Reorganization on the Closing Date and the payment of fees and expenses in connection therewith, from its chief financial officer;
(xiv) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral; and
(xv) such other certificates or documents as the Administrative Agent or any Lender reasonably may require.
(i) The Confirmation Order shall have been entered by the Bankruptcy Court and shall have become final and non-appealable.
(j) After giving effect to the Closing Date, the Plan Effective Date shall have occurred.
(k) Substantially concurrently with the Closing Date, all principal, premium, if any, interest, fees and other amounts due or outstanding under the DIP Credit Agreement shall have been paid in full, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, all pursuant to documentation in form and substance satisfactory to the Administrative Agent and the Lenders, and the Administrative Agent shall have received reasonably satisfactory evidence thereof. 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 proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions to the Closing Date. The effectiveness obligation of this Agreement each Lender to make a Loan on the Closing Date is subject to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerEffective Date shall have occurred.
(b) All The Buyer shall have paid (or, substantially contemporaneously with the initial Borrowing hereunder, shall pay) for all shares of the Target initially validly tendered in the Offer pursuant to the Acquisition Agreement without giving effect to any modifications, consents, amendments or waivers thereto or thereunder that in each case are materially adverse to the interests of the Lenders or the Arrangers, unless the Arrangers shall have provided their written consent thereto (it being understood that any reduction in the “Offer Consideration” (as defined in the Acquisition Agreement as in effect on October 27, 2016) of less than 5% will be deemed not to be materially adverse to the Lenders and the Arrangers; provided, that any reduction of the Offer Consideration shall be allocated to a reduction in any amounts to be funded under each Tranche (as defined in the Bridge Commitment Letter) of the Bridge Facility in an amount which is proportionate to the percentage of the aggregate Offer Consideration under the Acquisition Agreement which may be funded with such Tranche). Any modifications, consents, amendments or waivers to the Acquisition Agreement that (i) modifies the definition of “Minimum Condition” (as defined in the Acquisition Agreement as in effect on October 27, 2016 and which, for the avoidance of doubt, will include any elections that the Buyer may make with respect to the Minimum Condition as set forth in the Acquisition Agreement as in effect on October 27, 2016) such that the percentage referenced therein is less than 70%, (ii) increases the Offer Consideration by more than 10% or (iii) makes any modification to Sections 2.04(a)(v) or 2.05(a) of the Acquisition Agreement (pertaining to the Buyer’s representation on the Target’s board of directors) that would result in less than a majority of the directors on the board of directors (bestuur) of the Target as of the Closing Date being directors designated by the Borrower or any of its Subsidiaries (determined immediately prior to the Closing Date), shall, in each case, be deemed to be materially adverse to the Lenders and the Arrangers.
(c) Since the date of the Acquisition Agreement, there shall not have occurred any Effect that would have or reasonably be expected to have, individually or in the aggregate, a Target Material Adverse Effect; provided that clause (ii) of the definition of Target Material Adverse Effect shall be excluded from such definition for the purposes of determining the satisfaction of this paragraph (c).
(d) The Administrative Agent shall have received (i) audited financial statements of the Borrower for each of its three most recent fiscal years ended at least 60 days prior to the Closing Date; (ii) unaudited financial statements of the Borrower for any quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date (with respect to which independent auditors shall have performed a SAS 100 review); (iii) audited financial statements of the Acquired Business for each of its three most recent fiscal years ended at least 60 days prior to the Closing Date and unaudited financial statements of the Acquired Business for any quarterly interim period or periods (other than the fourth fiscal quarter) ended after the date of its most recent audited financial statements (and corresponding periods of any prior year) and more than 40 days prior to the Closing Date (with respect to which independent auditors shall have performed a SAS 100 review); and (iv) customary pro forma financial statements of the Borrower giving effect to the Transactions (and such other acquisitions), in each case as required by Rule 3-05 and Article 11 of Regulation S-X under the Securities Act of 1933, as amended, as of the date of and for the period ending on the date of the latest financial statements delivered under clause (i) or (ii) above, as applicable, regardless of when the Borrower is required to file such financial statements with the Securities and Exchange Commission, and in each of clauses (i) through (iv), meeting the requirements of Regulation S-X under the Securities Act of 1933, as amended. The Administrative Agent and the Lenders hereby acknowledge that the Borrower’s and the Acquired Business’s public filing with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended, of any required financial statements will satisfy the requirements of this paragraph (d).
(e) Any fees required to be paid by the Borrower to the Arrangers, the Administrative Agent and or the Lenders on or before the Closing Date shall have been paid and all fees required Date, including pursuant to be paid to the Lenders on or before the Closing Date any Fee Letter, shall have been paid.
(cf) The Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent and the Lenders (directly to such counsel if requested by the Administrative Agent or the Lenders, as applicableAgent) to the extent invoiced at least three Business Days prior to or on the Closing DateDate (or such later date as agreed by the Borrower), plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Lenders, as applicableAgent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Article V shall be true and correct on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date.
(e) No Default shall exist on the Closing Date.
(f) All consents, licenses, approvals, waivers, acknowledgements and other agreements required in connection with the execution, delivery and performance by such Loan Party, and the validity against such Loan Party, of the Loan Documents delivered on the Closing Date to which it is a party shall be in full force and effect.
(g) The Administrative Agent shall have received at a Request for Credit Extension in accordance with the requirements hereof.
(h) The Administrative Agent shall have received a solvency certificate from the chief financial officer of the Borrower in the form attached hereto as Exhibit B.
(i) At least 3 three Business Days prior to the Closing Date Date, the Borrower shall have provided to the Administrative Agent and the Lenders all documentation and other information about the Borrower and the Guarantors required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including including, without limitation, the USA PATRIOT Act Act, that has been requested by the Administrative Agent in writing at least 10 not less than ten Business Days prior to the Closing Date.
(hj) The Administrative Agent’s receipt At the time of and upon giving effect to the borrowing and application of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before Loans on the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
, (i) executed counterparts of the Guaranty, in form each Acquisition Representation shall be true and substance satisfactory to the Lenders, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
correct (ii) executed counterparts of the ABL Credit Agreement, in form and substance satisfactory to the Lenders duly executed by the parties thereto;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Lenders may 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;
(iv) such documents and certifications as the Lenders may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except but only to the extent that the Borrower or its applicable affiliates have the right not to consummate the Acquisition, or to terminate their respective obligations (or otherwise do not have an obligation to close), under the Acquisition Agreement as a result of a failure of such Acquisition Representation to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of (i) Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel to the Loan Partiestrue and correct), (ii) ▇the Specified Representations shall be true and correct in all material respects (or, with respect to any representation or warranty qualified by reference to materiality or Material Adverse Effect, in all respects) and (iii) there shall not exist any Default or Event of Default under paragraph (a), (e)(i)(A) or (f) of Section 8.01.
(k) All amounts due or outstanding in respect of the following facilities of the Acquired Business shall have been (or substantially simultaneously with the funding of the Loans on the Closing Date shall be) paid in full, all commitments (if any) in respect thereof terminated and all guarantees (if any) thereof and security (if any) therefor discharged and released: (a) that certain senior secured revolving credit agreement, dated as of December 7, 2015, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇Senior Funding Inc., P.C.as administrative agent, Colorado counsel (b) that certain senior secured term credit agreement, dated as of March 4, 2011, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to the Loan Partiestime parties thereto, and Barclays Bank PLC, as administrative agent, and (iiic) ▇▇▇▇▇▇ ▇that certain senior secured term credit agreement, dated as of December 7, 2015, among NXP B.V. and NXP Funding LLC, as borrowers, the several lenders from time to time parties thereto, and Credit Suisse AG, as administrative agent.
(l) The Administrative Agent shall have received a certificate dated the Closing Date from a Responsible Officer of the Borrower confirming the satisfaction of the conditions precedent described in paragraphs (b), (c), (j) and (k) of this Section 4.02.
(m) The Administrative Agent shall have received a favorable opinion of Cravath, Swaine & ▇▇▇▇▇ LLP, New Mexico counsel to the Loan PartiesBorrower, in each case addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(vi) a certificate signed by a Responsible Officer registration status of the Borrower certifying that under the conditions specified in Sections 4.01(d) and (e) have been satisfied;
(vii) a financial forecast Investment Company Act of the Borrower and its Subsidiaries on a consolidated basis prepared by management of the Borrower, including consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on an annual basis for each of the Borrower’s fiscal years 2016 through and including 2021;
(viii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(ix) executed counterparts of the Intercreditor Agreement1940, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(x) executed counterparts of the Security Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties 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) proper UCC financing statements in form appropriate for filing in all jurisdictions that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Lenders may deem necessary or desirable in order to cause the Term Loan Priority Collateral, subject to Section 6.12(f), to be subject to a perfected, first priority Lien in favor of the Administrative Agent for the benefit of the Secured Parties (prior to all other Liens other than Liens permitted pursuant to Section 7.01) as determined by the Lenders in their reasonable discretion, and
(D) the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement and in form and substance satisfactory to the Lenders) required pursuant to the Security Agreement (except to the extent otherwise provided in the Intercreditor Agreement).
(xi) intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case in form and substance satisfactory to the Lenders and as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken;
(xii) executed counterparts of the Intercompany Note, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(xiii) certificates attesting to the Solvency of (i) the Borrower and its Subsidiaries (individually and in the aggregate on a consolidated basis) and (ii) each of the Borrower, Basic Energy Services GP, LLC, Basic Energy Services LP, LLC, Basic Energy Services, L.P., and ▇▇▇▇▇▇ Industries, Inc. individually, before and after giving effect to the transactions contemplated by the Plan of Reorganization on the Closing Date and the payment of fees and expenses in connection therewith, from its chief financial officer;
(xiv) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral; and
(xv) such other certificates or documents as the Administrative Agent or any Lender reasonably may require.
(i) The Confirmation Order shall have been entered by the Bankruptcy Court and shall have become final and non-appealable.
(j) After giving effect to the Closing Date, the Plan Effective Date shall have occurred.
(k) Substantially concurrently with the Closing Date, all principal, premium, if any, interest, fees and other amounts due or outstanding under the DIP Credit Agreement shall have been paid in full, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, all pursuant to documentation in form and substance satisfactory to the Administrative Agent and the Lenders, and the Administrative Agent shall have received reasonably satisfactory evidence thereofAgent. 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 4.01Sections 4.01 and 4.02, 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 proposed Effective Date or Closing Date Date, as applicable, specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Qualcomm Inc/De)
Conditions to the Closing Date. The effectiveness obligation of this Agreement each Lender to fund the Term Loans requested to be made by it on the Closing Date is subject to the prior or concurrent satisfaction of each of the following conditions precedentconditions:
(a) The Existing 2018 Notes shall be concurrently validly “satisfied and discharged” in full pursuant to Section 8.02 of the Existing 2018 Notes Indenture and the Loan Parties shall have concurrently delivered to the Administrative Agent reasonably satisfactory written evidence thereof and all documents or instruments (including “pay-off” letters, notices of prepayment and any opinions, certificates or other requirements in connection therewith) necessary to terminate or unconditionally release all liens or security interests related to the Existing 2018 Notes in form and substance reasonably satisfactory to the Administrative Agent. Immediately after giving effect to the Transactions, none of the Borrower or its Restricted Subsidiaries shall have outstanding any Indebtedness for borrowed money or preferred stock other than (i) the Term Loans and Commitments hereunder, (ii) the Indebtedness permitted by Section 6.01 and (iii) Indebtedness owed to the Borrower or any Guarantor.
(b) The Lenders shall be satisfied that all requisite Governmental Authorities and third parties shall have approved or consented to the Transactions to the extent necessary, and there shall be no governmental or judicial action, actual or threatened, that has or would have, singly or in the aggregate, a reasonable likelihood of restraining, preventing or imposing burdensome conditions on the Transactions or the other transactions contemplated hereby. The Lenders shall be satisfied that the Borrower, its Subsidiaries and the Transactions shall be in compliance in all material respects with all Requirements of Law, including Regulations T, Regulation U and Regulation X of the Board, and shall have received satisfactory evidence of such compliance reasonably requested by them.
(c) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or equivalent organizational document, including all amendments thereto, of each Loan Party, certified as of a recent date by the Secretary of State of the state of its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Secretary of State; and (ii) a certificate of the President, Chief Executive Officer, Chief Financial Officer, Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, any Vice President or any other executive officer (including any officer acting in an interim capacity) of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws or equivalent governing document of such Loan Party as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, members or managers of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation or equivalent organizational document of such Loan Party have not been amended since the date of the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party (with such certificate in this clause (c)(ii) containing the certification of another officer of such Loan Party as to the incumbency and specimen signature of the officer executing such certificate).
(d) The Administrative Agent shall have received a certificate, dated the Closing Date and signed by a Financial Officer of the Borrower, confirming compliance with the provisions of Sections 4.02(b), (c) and (d).
(e) The Administrative Agent shall have received all Fees and other amounts due and payable on or prior to the Closing Date (or be reasonably satisfied that all Fees and other amounts due and payable will be paid on the Closing Date from the proceeds of the Term Loans), including to the extent invoiced, reimbursement or payment of all out-of-pocket expenses to the extent required to be reimbursed or paid by the Borrower hereunder or under any other Loan Document.
(f) The Collateral Agent on behalf of the Secured Parties shall have a security interest on the Closing Date in the Collateral of the type and priority described in the Security Documents and Intercreditor Agreements (but subject to such Liens permitted under Section 6.02), and the Security Documents shall have been duly executed by each Loan Party that is to be a party thereto (and in the case of the Intercompany Notes, accompanied by instruments of transfer undated and endorsed in blank) and shall be in full force and effect on the Closing Date, and the Loan Parties shall deliver:
(i) except as provided in Section 5.15, to the extent required by the Guarantee and Collateral Agreement, all certificates, agreements or instruments representing or evidencing Collateral in the form of Equity Interests, accompanied by instruments of transfer and stock powers undated and endorsed in blank;
(ii) except as provided in Section 5.15, all other certificates, agreements, including Control Agreements, or instruments necessary to perfect the Collateral Agent’s receipt security interest in, among other things, all chattel paper, all Instruments, all Deposit Accounts, all Securities Accounts and all investment property of each Loan Party (as each such term is defined in the Guarantee and Collateral Agreement and to the extent required by the Guarantee and Collateral Agreement);
(iii) the UCC financing statements in appropriate form for filing under the UCC, filings to be filed with the United States Patent and Trademark Office and United States Copyright Office and such other documents under applicable Requirements of Law in each jurisdiction as may be necessary or appropriate or, in the opinion of the Collateral Agent, desirable to perfect the Liens created, or purported to be created, by the Security Documents;
(iv) certified copies of UCC searches, intellectual property searches, and such other searches that the Collateral Agent deems necessary or appropriate, each of a recent date listing all effective financing statements, lien notices or comparable documents that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized, none of which encumber the Collateral covered or intended to be covered by the Security Documents (other than Liens permitted under Section 6.02 or any other Liens acceptable to the Collateral Agent); and
(v) evidence acceptable to the Collateral Agent of payment or arrangements for payment by the Loan Parties of all applicable recording taxes, fees, charges, costs and expenses required for the recording of the Security Documents.
(g) The Lenders shall have received the financial statements and forecasts referred to in Section 3.05.
(h) The Administrative Agent shall have received a solvency certificate substantially in the form of Exhibit G, dated the Closing Date and signed by the chief financial officer of the Borrower.
(i) except as provided in Section 5.15, (i) each of the Mortgages relating to each of the Mortgaged Properties shall have been duly executed counterparts by the parties thereto and delivered to the Collateral Agent and shall be in full force and effect, (ii) title searches shall indicate that the Mortgaged Properties are not subject to any Lien other than those permitted under Section 6.02 hereto or the Collateral Agent has received evidence reasonably satisfactory to it that any such existing Lien will be released on the Closing Date, (iii) each of such Security Documents shall have been filed and recorded in the appropriate recording office in the jurisdiction in which the Mortgaged Property is located or shall have been delivered to the Administrative Agent or a nationally recognized title insurance company in a proper form for filing, recordation or registration in form and substance acceptable to the Collateral Agent as a first priority lien on such Mortgaged Property (subject only to any Lien permitted by Section 6.02) and, upon filing or recordation, as applicable, in connection therewith where filed or recorded, as applicable, the Collateral Agent shall have received evidence reasonably satisfactory to it of each such filing or recordation, (iv) the Collateral Agent shall have received such other documents, including a policy or policies of title insurance issued by a nationally recognized title insurance company in amounts reasonably acceptable to the Collateral Agent, together with such endorsements, coinsurance and reinsurance as may be reasonably requested by the Collateral Agent and the Lenders, insuring the Mortgages as valid first priority liens on the Mortgaged Properties, free of Liens (other than those permitted under Section 6.02), together with such surveys, affidavits, abstracts, appraisals and legal opinions required to be furnished pursuant to the terms of the Mortgages or as reasonably requested by the Collateral Agent or the Lenders and (v) with respect to each improved Mortgaged Property, a “Life-of Loan” Federal Emergency Management Agency Standard Flood Hazard Determination and, if the area in which any improvements located on any Mortgaged Property is designated a “special flood hazard area” by the Federal Emergency Management Agency (or any successor agency), evidence of flood insurance satisfying the requirements of Section 5.02(c) hereof.
(j) On or prior to the Closing Date, the Borrower shall have delivered (by electronic transmission or otherwise) to the Administrative Agent fully executed copies of (i) this Agreement sufficient Agreement, (ii) an amendment to the ABL Facility (in number for distribution form and substance reasonably satisfactory to the Administrative Agent) and (iii) the ABL Intercreditor Agreement, and each such document shall have become effective pursuant to its terms.
(k) The Borrower shall:
(i) deliver to the Administrative Agent a Perfection Certificate with respect to the Loan Parties duly executed by a Responsible Officer of the Borrower;
(ii) provide a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.02 and the applicable provisions of the Security Documents, each of which shall be endorsed or otherwise amended to include a customary lender’s loss payable endorsement and to name the Collateral Agent as additional insured;
(iii) provide to the Administrative Agent, each Lender on behalf of itself and the Borrower.
Lenders, a reasonably satisfactory written opinion of (bi) All fees required to be paid Winston & ▇▇▇▇▇▇ LLP, counsel for the Borrower (A) addressed to the Administrative Agent and the Lenders on or before the Closing Date shall have been paid and all fees required to be paid (B) covering certain matters relating to the Lenders Loan Documents as the Administrative Agent shall reasonably request, and the Borrower hereby requests such counsel to deliver such opinion and (ii) each local counsel listed on or before the Closing Date shall have been paid.Schedule 4.01(k)(iii);
(civ) The Borrower shall have paid all feesprovide to the Administrative Agent each of the Loan Documents listed on Schedule 4.01(k)(iv), charges in each case executed by a duly authorized officer of each party thereto, in form and disbursements of counsel substance satisfactory to the Administrative Agent and the Lenders (directly to such counsel if requested by the Administrative Agent or the Lenders, as applicable) to the extent invoiced prior to or in full force and effect on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred ; and
(v) deliver a Note executed by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Lenders, as applicable).
(d) The representations and warranties in favor of the Borrower and each other Loan Party contained Lender that has requested a Note at least two Business Days in Article V shall be true and correct on and as advance of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date.
(e) No Default shall exist on the Closing Date.
(f) All consents, licenses, approvals, waivers, acknowledgements and other agreements required in connection with the execution, delivery and performance by such Loan Party, and the validity against such Loan Party, of the Loan Documents delivered on the Closing Date to which it is a party shall be in full force and effect.
(gl) The Administrative Agent Lenders shall have received at least 3 Business Days prior received, to the Closing Date extent requested, all documentation and other information about the Borrower and the Guarantors required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act that has been requested by the Administrative Agent in writing at least 10 five Business Days prior to the Closing Date.
(h) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of the Guaranty, in form and substance satisfactory to the Lenders, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) executed counterparts of the ABL Credit Agreement, in form and substance satisfactory to the Lenders duly executed by the parties thereto;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Lenders may 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;
(iv) such documents and certifications as the Lenders may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of (i) Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇, P.C., Colorado counsel to the Loan Parties, and (iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, New Mexico counsel to the Loan Parties, in each case addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.01(d) and (e) have been satisfied;
(vii) a financial forecast of the Borrower and its Subsidiaries on a consolidated basis prepared by management of the Borrower, including consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on an annual basis for each of the Borrower’s fiscal years 2016 through and including 2021;
(viii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(ix) executed counterparts of the Intercreditor Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(x) executed counterparts of the Security Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties 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) proper UCC financing statements in form appropriate for filing in all jurisdictions that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Lenders may deem necessary or desirable in order to cause the Term Loan Priority Collateral, subject to Section 6.12(f), to be subject to a perfected, first priority Lien in favor of the Administrative Agent for the benefit of the Secured Parties (prior to all other Liens other than Liens permitted pursuant to Section 7.01) as determined by the Lenders in their reasonable discretion, and
(D) the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement and in form and substance satisfactory to the Lenders) required pursuant to the Security Agreement (except to the extent otherwise provided in the Intercreditor Agreement).
(xi) intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case in form and substance satisfactory to the Lenders and as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken;
(xii) executed counterparts of the Intercompany Note, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(xiii) certificates attesting to the Solvency of (i) the Borrower and its Subsidiaries (individually and in the aggregate on a consolidated basis) and (ii) each of the Borrower, Basic Energy Services GP, LLC, Basic Energy Services LP, LLC, Basic Energy Services, L.P., and ▇▇▇▇▇▇ Industries, Inc. individually, before and after giving effect to the transactions contemplated by the Plan of Reorganization on the Closing Date and the payment of fees and expenses in connection therewith, from its chief financial officer;
(xiv) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral; and
(xv) such other certificates or documents as the Administrative Agent or any Lender reasonably may require.
(i) The Confirmation Order shall have been entered by the Bankruptcy Court and shall have become final and non-appealable.
(j) After giving effect to the Closing Date, the Plan Effective Date shall have occurred.
(k) Substantially concurrently with the Closing Date, all principal, premium, if any, interest, fees and other amounts due or outstanding under the DIP Credit Agreement shall have been paid in full, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, all pursuant to documentation in form and substance satisfactory to the Administrative Agent and the Lenders, and the Administrative Agent shall have received reasonably satisfactory evidence thereof. Without limiting the generality of the provisions of the last paragraph of Section 9.03Article VIII, for purposes of determining compliance with the conditions specified in this Section 4.01, by signing this Agreement, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied indicated its satisfaction with, each document or other matter required thereunder hereunder 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 proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions to the Closing Date. The effectiveness obligation of this Agreement each Lender to make a Loan on the Closing Date is subject to the satisfaction (or waiver in accordance with Section 11.01) of the following conditions precedent:
(a) The Administrative Agent’s receipt Closing Date Acquisition shall be consummated, substantially concurrently with the borrowing of executed counterparts the Loans hereunder, in accordance with the Acquisition Agreement in all material respects and without giving effect to any amendments, modifications or supplements of this Agreement sufficient in number for distribution or to the Administrative AgentAcquisition Agreement, each Lender or any waivers of any provision or condition therein, or any grants of any consent thereunder (directly or indirectly, including as a result of a consent under any other Transaction Document (as defined in the Acquisition Agreement as in effect on the Signing Date)), by the Company or any of its Subsidiaries, that are, individually or in the aggregate, materially adverse to the interests of the Lenders (in their capacities as such), without the prior written consent of the Arrangers (such consent not to be unreasonably withheld, conditioned or delayed); provided that the Arrangers shall be deemed to have consented to any such amendment, modification, supplement, waiver or consent unless an Arranger shall object in writing thereto within three (3) Business Days of being notified by the Company of such amendment, modification, supplement, waiver or consent and being provided with a copy thereof; provided, further, that (i) any reductions to the Borroweraggregate consideration for the Closing Date Acquisition that do not exceed, when taken together with all prior reductions, 15% of the original aggregate consideration for the Closing Date Acquisition shall not be deemed to be materially adverse to the interests of the Lenders (in their capacities as such), so long as the Commitments are reduced on a dollar-for-dollar basis by any reductions in the cash component of the aggregate consideration for the Closing Date Acquisition, (ii) any reductions to the aggregate consideration for the Closing Date Acquisition that exceed, when taken together with all prior reductions, 15% of the original aggregate consideration for the Closing Date Acquisition shall be deemed to be materially adverse to the interests of the Lenders (in their capacities as such) and (iii) any increases to the cash component of the aggregate consideration for the Closing Date Acquisition that do not exceed, when taken together with all prior such increases, 15% of the original cash component of the aggregate consideration for the Closing Date Acquisition shall not be deemed to be (and any such increases that exceed 15% of the original cash component of the aggregate consideration for the Closing Date Acquisition will be deemed to be) materially adverse to the interests of the Lenders (in their capacities as such).
(b) All fees required to be paid to Since the Administrative Agent and date of the Lenders on or before the Closing Date Acquisition Agreement, there shall not have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paida Business Material Adverse Effect.
(c) The Borrower Administrative Agent shall have paid all fees, charges and disbursements of counsel received: (i) with respect to the Administrative Agent Company, (x) audited consolidated balance sheets and related consolidated statements of earnings (loss), comprehensive earnings (loss), equity and cash flows of the Lenders Company as of the end of and for each of the last three full fiscal years ended at least 60 days prior to the Closing Date and (directly y) unaudited consolidated balance sheets and related consolidated statements of earnings (loss), comprehensive earnings (loss), equity and cash flows of the Company as of the end of and for each subsequent fiscal quarter ended at least 45 days prior to the Closing Date (other than the fourth fiscal quarter of any fiscal year), in each case which are prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year, and it being understood and agreed that, with respect to any such financial statements for each such fiscal year and fiscal quarter, such condition shall be deemed satisfied through the filing by the Company of its annual report on Form 10-K or quarterly report on Form 10-Q with respect to such counsel if requested by the Administrative Agent fiscal year or the Lenders, as applicable) to the extent invoiced prior to or on the Closing Date, plus fiscal quarter containing such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings financial statements (provided that such estimate shall a subsequent Form 8-K, Item 4.02 has not thereafter preclude a final settling been filed with respect to the financial statements included therein), and (ii) with respect to the Acquired Business, (x) the unaudited combined balance sheets of accounts between the Borrower Acquired Business and the related combined statements of income (loss), equity and cash flows as of the end of and for each fiscal quarter ending after December 31, 2024, with comparative financial information for the equivalent period of the prior year, prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year as soon as reasonably practicable following the end of such quarter and, in any event, no later than 45 days after end of such quarter, (y) the audited combined balance sheets of the Acquired Business and the related combined statements of income (loss), equity and cash flows as of the end of and for the fiscal years ended December 31, 2023 and December 31, 2024 prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year as soon as reasonably practicable following the Signing Date, but in any event no later than 135 days after the Signing Date and (z) the audited combined balance sheets of the Acquired Business and the related combined statements of income (loss), equity and cash flows as of the end of and for the fiscal years ended December 31, 2025 and December 31, 2026 prepared in accordance with GAAP applied on a basis consistent with that of the most recent fiscal year as soon as reasonably practicable following the end of such fiscal year and, in any event, no later than sixty (60) days after the end of such year. The Administrative Agent hereby acknowledges receipt of the financial statements in the foregoing clause (i) with respect to the Company for fiscal years ended December 31, 2022, December 31, 2023 and the LendersDecember 31, as applicable)2024.
(d) The representations and warranties of the Borrower and each other Loan Party contained in Article V shall be true and correct on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date.
(e) No Default shall exist on the Closing Date.
(f) All consents, licenses, approvals, waivers, acknowledgements and other agreements required in connection with the execution, delivery and performance by such Loan Party, and the validity against such Loan Party, of the Loan Documents delivered on the Closing Date to which it is a party shall be in full force and effect.
(g) The Administrative Agent shall have received (i) a pro forma consolidated balance sheet for the Company and the Acquired Business dated as of the date of the most recent balance sheet required to be delivered under clause (i) of Section 4.02(c) and (ii) pro forma consolidated statements of comprehensive earnings (loss) for the Company and the Acquired Business for each of (x) the most recent fiscal year of the Company for which audited consolidated financial statements are required to be delivered under clause (i) of Section 4.02(c) and (y) the interim period, if any, since the date of such audited financial statements through the most recent quarterly unaudited financial statements of the Company required to be delivered under clause (i) of Section 4.02(c), in each case giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at least 3 Business Days prior the beginning of the fiscal year described in the foregoing clause (ii)(x) (in the case of the statements of comprehensive earnings (loss)), which financial statements shall be required to meet the requirements of Article 11 of Regulation S-X under the Securities Act of 1933.
(e) The Administrative Agent shall have received (i) a certificate dated the Closing Date all documentation and other information about the Borrower and the Guarantors required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act that has been requested by the Administrative Agent in writing at least 10 Business Days prior to the Closing Date.
(h) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed signed by a Responsible Officer of the signing Company as to the satisfaction of the conditions precedent set forth in clauses (a), (b) and (f) of this Section 4.02, (ii) a duly executed Loan PartyNotice complying with the terms of Section 2.02 and (iii) a solvency certificate from the chief financial officer, each dated executive vice-president or treasurer of the Company in the form attached as Exhibit B hereto certifying that the Company and its Subsidiaries, on a consolidated basis on the Closing Date after giving effect to the Transactions, are solvent.
(or, in f) At the case time of certificates and after giving effect to the Borrowing and application of governmental officials, a recent date before the proceeds of the Loans on the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
, (i) executed counterparts the Acquisition Agreement Representations shall be true and correct; provided that a failure of an Acquisition Agreement Representation to be accurate will not result in a failure of a condition to funding set forth in this clause (f)(i) unless such failure results in a failure of a condition precedent to the Company’s (or the Company’s applicable Subsidiaries’) obligation to consummate the Closing Date Acquisition pursuant to the terms of the Guaranty, in form Acquisition Agreement or such failure gives the Company (or the Company’s applicable Subsidiaries) the right (taking into account any notice and substance satisfactory cure provisions) to terminate the Company’s (or the Company’s applicable Subsidiaries’) obligation to consummate the Closing Date Acquisition pursuant to the Lendersterms of the Acquisition Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) executed counterparts the Specified Representations shall be true and correct in all material respects (without duplication of the ABL Credit Agreement, in form and substance satisfactory to the Lenders duly executed by the parties thereto;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Lenders may 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;
(iv) such documents and certifications as the Lenders may reasonably require to evidence any materiality qualifier set forth therein); provided that each Loan Party is duly organized or formed, and that the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure any Specified Representation specifically refers to do so could not reasonably an earlier date, such representation shall be expected accurate in all material respects (without duplication of any materiality qualifier set forth therein) as of such earlier date and (iii) no Event of Default under (x) Section 8.01(a) (solely with respect to the non-payment of fees due and payable by the Company under this Agreement) or (y) Section 8.01(f) (solely with respect to the Company) shall have a Material Adverse Effect;occurred and be continuing.
(vg) a favorable opinion The Company shall have paid all fees and expenses due under that (x) certain Arranger Fee Letter, dated as of each of (i) Weilthe Signing Date, Gotshal & ▇▇▇▇▇▇ LLPamong the Company, counsel to the Loan Parties, (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ & Fargo Bank, National Association and ▇▇▇▇▇▇▇ Fargo Securities, P.C., Colorado counsel to the Loan Parties, LLC and (iiiy) certain Administrative Agent Fee Letter, dated as of the Signing Date, among the Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, New Mexico counsel to the Loan Parties, in each case addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.01(d) and (e) have been satisfied;
(vii) a financial forecast of the Borrower and its Subsidiaries on a consolidated basis prepared by management of the Borrower, including consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on an annual basis for each of the Borrower’s fiscal years 2016 through and including 2021;
(viii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(ix) executed counterparts of the Intercreditor Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(x) executed counterparts of the Security Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties 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) proper UCC financing statements in form appropriate for filing in all jurisdictions that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Lenders may deem necessary or desirable in order to cause the Term Loan Priority Collateral, subject to Section 6.12(f), to be subject to a perfected, first priority Lien in favor of the Administrative Agent for the benefit of the Secured Parties (prior to all other Liens other than Liens permitted pursuant to Section 7.01) as determined by the Lenders in their reasonable discretion, and
(D) the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined that are referred to in the Security Agreement Term Loan Commitment Letter (collectively, the “Term Loan Fee Letters”), and in form the case of expenses and substance satisfactory to the Lenders) required pursuant to the Security Agreement (except legal fees, to the extent otherwise provided invoiced in the Intercreditor Agreement).
reasonable detail at least two (xi2) intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case in form and substance satisfactory to the Lenders and as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken;
(xii) executed counterparts of the Intercompany Note, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(xiii) certificates attesting to the Solvency of (i) the Borrower and its Subsidiaries (individually and in the aggregate on a consolidated basis) and (ii) each of the Borrower, Basic Energy Services GP, LLC, Basic Energy Services LP, LLC, Basic Energy Services, L.P., and ▇▇▇▇▇▇ Industries, Inc. individually, before and after giving effect to the transactions contemplated by the Plan of Reorganization on the Closing Date and the payment of fees and expenses in connection therewith, from its chief financial officer;
(xiv) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral; and
(xv) such other certificates or documents as the Administrative Agent or any Lender reasonably may require.
(i) The Confirmation Order shall have been entered by the Bankruptcy Court and shall have become final and non-appealable.
(j) After giving effect Business Days prior to the Closing Date, the Plan Effective Date shall have occurred.
(k) Substantially concurrently with and required to be paid on the Closing Date, all principal, premium, if any, interest, fees and other amounts due or outstanding under the DIP Credit Agreement shall have been paid in full, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, all pursuant to documentation in form and substance satisfactory to the Administrative Agent and the Lenders, and the Administrative Agent shall have received reasonably satisfactory evidence thereof. 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 proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Fidelity National Information Services, Inc.)
Conditions to the Closing Date. The effectiveness obligations of this Agreement the Lenders to make Loans and of the Issuing Bank to make LC Credit Extensions hereunder shall not become effective unless, on the Closing Date is subject or prior to the satisfaction April 15, 2008, each of the following conditions precedent:is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent’s receipt of executed counterparts of this OMX Transaction Agreement sufficient shall have not been amended or modified in number for distribution any respect that is materially adverse to the Administrative AgentLenders without the consent of the Arrangers (which consent shall not be unreasonably withheld). The conditions to the completion of the OMX Acquisition set forth in the OMX Transaction Agreement shall have been satisfied in all material respects in accordance with the OMX Transaction Agreement without any waiver by the Borrower that is materially adverse to the Lenders unless the Arrangers shall have consented to such waiver, each Lender which consent shall not be unreasonably withheld, and the BorrowerOMX Acquisition shall be consummated substantially concurrently with the initial borrowings hereunder.
(b) All fees required to be paid to the Administrative Agent and the Lenders on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) The Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent and the Lenders (directly to such counsel if requested by the Administrative Agent or the Lenders, as applicable) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Lenders, as applicable).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Article V shall be true and correct on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date.
(e) No Default shall exist on the Closing Date.
(f) All consents, licenses, approvals, waivers, acknowledgements and other agreements required in connection with the execution, delivery and performance by such Loan Party, and the validity against such Loan Party, of the Loan Documents delivered on the Closing Date to which it is a party shall be in full force and effect.
(g) The Administrative Agent shall have received at least 3 Business Days prior confirmation that, pursuant to the Closing Date all documentation and other information about OMX Acquisition, substantially concurrently with the making of the initial Loans hereunder, the Borrower and will own OMX Shares which represent more than 66 2/3% of the Guarantors required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act that has been requested by the Administrative Agent in writing at least 10 Business Days prior to the Closing DateOMX Shares (on a fully diluted basis).
(hc) The Administrative Agent’s receipt of Agent shall have received the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated a date on or prior to the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the LendersArrangers:
(i) executed counterparts of the GuarantyCollateral Agreement from the Borrower and each Subsidiary Loan Party together with (x) Uniform Commercial Code financing statements for each Loan Party in appropriate form for filing with the Secretary of State of each applicable jurisdiction, (y) stock certificates and stock powers in form and substance satisfactory favor of the Administrative Agent with respect to all certificated Equity Interests pledged thereunder to the Lendersextent required by the Collateral Agreement; provided that, sufficient in number for distribution to the Administrative Agentextent any Collateral (other than the pledge and perfection of the security interests in the capital stock of wholly-owned domestic Subsidiaries held by the Loan Parties (to the extent required by the Collateral Agreement) and other assets pursuant to which a Lien may be perfected by the filing of a financing statement under the Uniform Commercial Code) is not provided on the Closing Date after the Borrower has used commercially reasonable efforts to do so, each Lender and the Borrowerdelivery of such Collateral shall not constitute a condition precedent to the availability of the Loans on the Closing Date but shall be required to be delivered after the Closing Date pursuant to Section 5.13(d);
(ii) executed counterparts of the ABL Credit Agreement, lien searches with respect to each Loan Party in form and substance satisfactory to the Lenders duly executed such jurisdictions as may be reasonably requested by the parties theretoAdministrative Agent;
(iii) a promissory note executed by the Borrower in favor of each Lender requesting three Business Days in advance a promissory note evidencing the Loan provided by such Lender;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Lenders Administrative Agent may 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;
(ivv) such documents and certifications as the Lenders may reasonably require to evidence that a certificate of good standing for each Loan Party is duly organized or formed, and that from its jurisdiction of organization;
(vi) a certificate signed by the Chief Financial Officer of the Borrower certifying as to the solvency of the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except Subsidiaries (on a consolidated basis) after giving effect to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;OMX Acquisition and the incurrence of all Indebtedness related thereto; and
(vvii) a favorable opinion of each of (i) WeilSkadden, Gotshal & Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Loan Parties, (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇, P.C., Colorado and local counsel to the Loan Parties, and (iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, New Mexico counsel to the Loan Parties, in each case addressed to the Administrative Agent and each Lender, in the form attached as to the matters concerning Exhibit D.
(d) The representations and warranties made by the Loan Parties in Section 3.01(c), Section 3.02(b), Section 3.08, Section 3.16 and Section 3.17 as they relate to the Loan Documents as the Required Lenders may reasonably request;Parties at such time shall be true and correct in all material respects.
(vi) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.01(d) and (e) have been satisfied;
(vii) a financial forecast of the Borrower and its Subsidiaries on a consolidated basis prepared by management of the Borrower, including consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on an annual basis for each of the Borrower’s fiscal years 2016 through and including 2021;
(viii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(ix) executed counterparts of the Intercreditor Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(x) executed counterparts of the Security Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties 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) proper UCC financing statements in form appropriate for filing in all jurisdictions that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Lenders may deem necessary or desirable in order to cause the Term Loan Priority Collateral, subject to Section 6.12(f), to be subject to a perfected, first priority Lien in favor of the Administrative Agent for the benefit of the Secured Parties (prior to all other Liens other than Liens permitted pursuant to Section 7.01) as determined by the Lenders in their reasonable discretion, and
(D) the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement and in form and substance satisfactory to the Lenders) required pursuant to the Security Agreement (except to the extent otherwise provided in the Intercreditor Agreement).
(xi) intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case in form and substance satisfactory to the Lenders and as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken;
(xii) executed counterparts of the Intercompany Note, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(xiii) certificates attesting to the Solvency of (i) the Borrower and its Subsidiaries (individually and in the aggregate on a consolidated basis) and (ii) each of the Borrower, Basic Energy Services GP, LLC, Basic Energy Services LP, LLC, Basic Energy Services, L.P., and ▇▇▇▇▇▇ Industries, Inc. individually, before and after giving effect to the transactions contemplated by the Plan of Reorganization on the Closing Date and the payment of All accrued fees and expenses in connection therewith, from its chief financial officer;
(xiv) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral; and
(xv) such other certificates or documents as the Administrative Agent or any Lender reasonably may require.
(i) The Confirmation Order shall have been entered by the Bankruptcy Court and shall have become final and non-appealable.
(j) After giving effect to the Closing Date, the Plan Effective Date shall have occurred.
(k) Substantially concurrently with the Closing Date, all principal, premium, if any, interest, fees and other amounts due or outstanding under the DIP Credit Agreement shall have been paid in full, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, all pursuant to documentation in form and substance satisfactory to the Administrative Agent and the Lenders, Lead Arrangers (including the fees and expenses of counsel for the Administrative Agent and the Lead Arrangers and local and special counsel for the Administrative Agent and the Lead Arrangers) shall have been paid. The Borrower shall have paid all items then due and payable under the Fee Letter.
(f) The Administrative Agent shall have received reasonably satisfactory evidence thereof. Without limiting a Borrowing Request in accordance with the generality of the provisions of the last paragraph requirements 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 proposed Closing Date specifying its objection thereto2.03 hereof.
Appears in 1 contract
Conditions to the Closing Date. The effectiveness obligation of this Agreement each Lender to make the Loans on the Closing Date is subject to the satisfaction (or waiver by the Administrative Agent) of the following conditions precedent, and only the following conditions precedent, on the Closing Date:
(a) The Administrative Agent’s receipt Borrowing of executed counterparts such Loans shall occur on or before the Ellie Mae Acquisition Date, which shall be on or before the earlier to occur of this (i) the termination or expiration of the Ellie Mae Acquisition Agreement sufficient in number for distribution to accordance with its terms, and (ii) the Administrative Agent“Outside Date” (as defined in the Ellie Mae Acquisition Agreement as in effect on August 6, each Lender and 2020) as such date may be extended in accordance with the Borrower.Ellie Mae Acquisition Agreement as in effect on August 6, 2020 (but in any event not later than August 6, 2021);
(b) All fees required to be paid The Administrative Agent shall have received a certificate of the chief financial officer of the Borrower as to the Administrative Agent solvency of the Borrower and its Subsidiaries, on a consolidated basis, in the Lenders on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.form of Exhibit F;
(c) The Borrower conditions set forth in Article VII of the Ellie Mae Acquisition Agreement (other than those conditions that by their nature are to be satisfied at the “Closing” (as defined in the Ellie Mae Acquisition Agreement)) shall have paid all feesbe satisfied substantially in accordance with the terms and conditions of the Ellie Mae Acquisition Agreement without giving effect to any waiver, charges and disbursements of counsel modification or consent thereunder that is materially adverse to the Administrative Agent and Lenders or the Lenders Initial Arranger (directly to such counsel if requested as reasonably determined by the Administrative Agent or Initial Arranger) unless approved by the Lenders, as applicable) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings Initial Arranger (provided that such estimate which approval shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent and the Lendersbe unreasonably withheld, as applicableconditioned or delayed).;
(d) The representations and warranties of the Borrower set forth in Sections 4.1(i), 4.1(ii) (but only with respect to the Borrower’s power and each other Loan Party contained in Article V authority to execute, deliver and perform the Credit Documents), 4.2, 4.3 (but only with respect to clause (i) therein), 4.7, 4.11, 4.12 (but only with respect to the Borrower’s use of proceeds) and 4.13 shall be true and correct on in all material respects (except that any representation and warranty qualified as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they materiality or Material Adverse Effect shall be true and correct as of such earlier date.in all respects);
(e) No Event of Default shall exist under Section 8.1(a), 8.1(f) or 8.1(g), nor any “event of default” or similar condition under the Bridge Facility, the Revolving Credit Agreement (unless terminated on or prior to the Closing Date.), or any other Indebtedness in excess of the Threshold Amount in the aggregate (but only insofar as such “event of default” or similar condition relates to bankruptcy or insolvency, or the nonpayment of principal, interest or fees), shall have occurred and be continuing on such date, both immediately before and immediately after giving effect to the Loans to be made on such date;
(f) All consents, licenses, approvals, waivers, acknowledgements and other agreements required in connection with the execution, delivery and performance by such Loan Party, and the validity against such Loan Party, of the Loan Documents delivered on the Closing Date to which it is a party shall be in full force and effect.
(g) The Administrative Agent shall have received at least 3 a Notice of Borrowing in accordance with Section 2.2(b) and, if any LIBOR Loans are to be borrowed on the Closing Date and such date is prior to the third Business Day after the Effective Date, the Administrative Agent shall have received, three Business Days prior to such date, a customary pre-funding LIBOR indemnity letter from the Closing Date all documentation Borrower;
(g) The aggregate principal of such Loans shall not exceed the aggregate Commitments at such time (determined without giving effect to such Loans);
(h) All fees and other information about (to the Borrower and the Guarantors required under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act that has been requested by the Administrative Agent in writing extent invoiced at least 10 two Business Days prior to the Closing Date.
(h) The expenses due to the Initial Arranger, the Administrative Agent’s receipt of Agent and the following, each of which shall Lenders required to be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated paid on the Closing Date (or, in including the case fees and expenses of certificates of governmental officials, a recent date before counsel for the Closing Date) Initial Arranger and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of the Guaranty, in form and substance satisfactory to the Lenders, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) executed counterparts of the ABL Credit Agreement, in form and substance satisfactory to the Lenders duly executed by the parties thereto;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Lenders may 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;
(iv) such documents and certifications as the Lenders may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of (i) Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel to the Loan Parties, (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇, P.C., Colorado counsel to the Loan Parties, and (iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, New Mexico counsel to the Loan Parties, in each case addressed to the Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(vi) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 4.01(d) and (e) will have been satisfied;
(vii) a financial forecast of the Borrower and its Subsidiaries on a consolidated basis prepared by management of the Borrower, including consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on an annual basis for each of the Borrower’s fiscal years 2016 through and including 2021;
(viii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(ix) executed counterparts of the Intercreditor Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(x) executed counterparts of the Security Agreement, in form and substance satisfactory to the Lenders, duly executed by the parties 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) proper UCC financing statements in form appropriate for filing in all jurisdictions that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Lenders may deem necessary or desirable in order to cause the Term Loan Priority Collateral, subject to Section 6.12(f), to be subject to a perfected, first priority Lien in favor of the Administrative Agent for the benefit of the Secured Parties (prior to all other Liens other than Liens permitted pursuant to Section 7.01) as determined by the Lenders in their reasonable discretion, and
(D) the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement and in form and substance satisfactory to the Lenders) required pursuant to the Security Agreement (except to the extent otherwise provided in the Intercreditor Agreement).
(xi) intellectual property security agreement supplements (together with each other intellectual property security agreement and intellectual property security agreement supplement currently in effect and hereafter delivered pursuant to Section 6.12, in each case in form and substance satisfactory to the Lenders and as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Lenders may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken;
(xii) executed counterparts of the Intercompany Note, in form and substance satisfactory to the Lenders, duly executed by the parties thereto;
(xiii) certificates attesting to the Solvency of (i) the Borrower and its Subsidiaries (individually and in the aggregate on a consolidated basis) and (ii) each of the Borrower, Basic Energy Services GP, LLC, Basic Energy Services LP, LLC, Basic Energy Services, L.P., and ▇▇▇▇▇▇ Industries, Inc. individually, before and after giving effect to the transactions contemplated by the Plan of Reorganization on the Closing Date and the payment of fees and expenses in connection therewith, from its chief financial officer;
(xiv) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with the certificates of insurance, naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateralpaid; and
(xv) such other certificates or documents as the Administrative Agent or any Lender reasonably may require.
(i) The Confirmation Order shall have been entered by the Bankruptcy Court and shall have become final and non-appealable.
(j) After giving effect to the Closing Date, the Plan Effective Date shall have occurred.
(k) Substantially concurrently with the Closing Date, all principal, premium, if any, interest, fees and other amounts due or outstanding under the DIP Credit Agreement shall have been paid in full, the commitments thereunder terminated and all guarantees and security in support thereof discharged and released, all pursuant to documentation in form and substance satisfactory to the Administrative Agent and the Lenders, and the Administrative Agent shall have received reasonably satisfactory evidence thereof. 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 proposed Closing Date specifying its objection thereto.
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Sources: Term Loan Credit Agreement (Intercontinental Exchange, Inc.)