First Credit Event. On or prior to the Closing Date: (a) The Administrative Agent (or its counsel) shall have received from each of Holdings, the Borrower, the Issuing Bank and the Lenders (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement. (b) The Administrative Agent shall have received, on behalf of itself and the Lenders and each Issuing Bank, a written opinion of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Loan Parties (A) dated the Closing Date, (B) addressed to each Issuing Bank, the Administrative Agent and the Lenders on the Closing Date and (C) in form and substance reasonably satisfactory to the Administrative Agent, covering such matters relating to the Loan Documents as the Administrative Agent shall reasonably request. (c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying: (i) a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, or (B) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party, (ii) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official), (iii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) 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 (iv) below, (iv) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date 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 on the Closing Date, (v) 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, and (vi) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party. (d) The Administrative Agent shall have received a completed Perfection Certificate, dated the Closing Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby, and the results of a search of the Uniform Commercial Code (or equivalent), tax and judgment filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are Permitted Liens or have been, or will be simultaneously or substantially concurrently with the closing under this Agreement, released (or arrangements reasonably satisfactory to the Administrative Agent for such release shall have been made). (e) The Merger shall have been consummated or shall be consummated simultaneously or substantially concurrently with the closing under this Agreement in accordance with the terms and conditions of the Merger as set forth in the Merger Agreement, without giving effect to any amendment, waiver, consent or other modification thereof by Parent or Merger Sub that is materially adverse to the interests of the Arrangers and the Lenders (in their capacities as such) unless it is approved by the Administrative Agent (which approval shall not be unreasonably withheld or delayed). (f) Prior to, simultaneously, or substantially concurrently with the closing under this Agreement, the Fund or Fund Affiliates and other investors designated by the Fund shall have contributed the Equity Financing. (g) The Administrative Agent shall have received (i) the financial statements referred to in Section 3.05 and (ii) a pro forma consolidated balance sheet and a related pro forma consolidated statement of income of Holdings and its Subsidiaries (based on the financial statements of Holdings referred to in Section 3.05) as of and for the four consecutive Fiscal Quarter period ending in June of 2013, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other statement of income), which include adjustments customary for Rule 144A transactions, provided, that it being understood that any purchase accounting adjustments may be preliminary in nature and be based only on estimates and allocations determined by the Borrower. (h) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, none of Holdings, the Borrower or any of their respective subsidiaries shall have any Indebtedness of the type described in clause (a) of the definition thereof other than (i) the Loans and other extensions of credit under this Agreement, (ii) the extensions of credit under the First Lien Credit Agreement, (iii) the extensions of credit under the Second Lien Secured Notes, (iv) other Indebtedness permitted to be incurred or outstanding on or prior to the Closing Date pursuant to the Merger Agreement, (v) other Indebtedness permitted under Section 6.01 and (vi) other Indebtedness approved by the Administrative Agent in its reasonable discretion. (i) The Lenders shall have received a solvency certificate substantially in the form of Exhibit C and signed by a Financial Officer of the Borrower confirming the solvency of Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing Date. (j) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced prior to the Closing Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document. (k) Except as set forth in Schedule 5.10 (which, for the avoidance of doubt, shall override the applicable clauses of the definition of “Collateral and Guarantee Requirement” for the purposes of this Section 4.02) and subject to the grace periods and post-closing set forth in such definition, the Collateral and Guarantee Requirement shall be satisfied (or waived) as of the Closing Date. (l) The Administrative Agent shall have received all documentation and other information required by Section 3.25(a) at least three (3) Business Days before the Closing Date, to the extent such information has been requested not less than ten (10) Business Days prior to the Closing Date. (m) Since the date of the Merger Agreement, there shall not have occurred any Business Material Adverse Change. (n) The Borrower shall have delivered to the Administrative Agent a certificate, dated as of the Closing Date, to the effect set forth in Section 4.01(b)(i) and Section 4.02(m) hereof. (o) The Administrative Agent shall have received evidence of insurance referred to in Section 5.02, to the extent applicable. (p) If the Initial Collateral Reporting Date occurs on the Closing Date, the Administrative Agent shall have received a Borrowing Base Certificate. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender 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 the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and, in the case of a Borrowing, such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (DS Services of America, Inc.)
First Credit Event. On or prior to the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each of Holdings, the Borrower, the Issuing Bank Banks and the Lenders (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself and itself, the Lenders and each Issuing Bank, a written opinion of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as special counsel for the Loan Parties Parties, (A) dated the Closing Date, (B) addressed to each Issuing Bank, the Administrative Agent and the Lenders on the Closing Date and (C) in form and substance reasonably satisfactory to the Administrative Agent, Agent covering such matters relating to the Loan Documents as the Administrative Agent shall reasonably request.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying:
(i) a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, (A1) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, or (B2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) 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 (iv) below,
(iv) that attached thereto is a true and complete copy of resolutions (or equivalent documentation) duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date to which such person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions (or equivalent documentation) have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
(v) 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, and
(vi) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received a completed Perfection Certificate, dated the Closing Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby, and the results of a search of the Uniform Commercial Code (or equivalent), tax and judgment judgment, United States Patent and Trademark Office and United States Copyright Office filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are Permitted Liens or have been, or will be simultaneously or substantially concurrently with the closing under this Agreement, released (or arrangements reasonably satisfactory to the Administrative Agent for such release shall have been made).
(e) The Merger Collateral Agent shall have been consummated or shall be consummated simultaneously or substantially concurrently with the closing under this Agreement in accordance with the terms received from Parent Holdco a duly executed and conditions delivered counterpart of the Merger as set forth in the Merger Parent Guarantee Agreement, without giving effect to any amendment, waiver, consent or other modification thereof by Parent or Merger Sub that is materially adverse to the interests of the Arrangers and the Lenders (in their capacities as such) unless it is approved by the Administrative Agent (which approval shall not be unreasonably withheld or delayed).
(f) Prior to, simultaneously, or substantially concurrently with the closing under this Agreement, the Fund or Fund Affiliates and other investors designated by the Fund shall have contributed the Equity Financing[Reserved].
(g) The Administrative Agent shall have received (i) the financial statements referred to in Section 3.05 and (ii) a pro forma consolidated balance sheet and a related pro forma consolidated statement of income of Holdings and its Subsidiaries (based on the financial statements of Holdings referred to in Section 3.05) as of and for the four consecutive Fiscal Quarter period ending in June of 2013, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other statement of income), which include adjustments customary for Rule 144A transactions, provided, that it being understood that any purchase accounting adjustments may be preliminary in nature and be based only on estimates and allocations determined by the Borrower.
(h) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, none of Holdings, the Borrower or any of their respective subsidiaries the Subsidiaries shall have any third party Indebtedness of the type described in clause (a) of the definition thereof other than (i) the Loans and other extensions of credit under this Agreement (including the Existing Roll-Over Letters of Credit, which shall be deemed to be Letters of Credit issued under and subject to this Agreement), (ii) the extensions of credit loans under the First Second Lien Credit Agreement, (iii) the extensions any roll-over of credit under the Second Lien Secured Notesthen existing Capitalized Lease Obligations, (iv) other Indebtedness permitted to be incurred or outstanding on or prior to in the Closing Date pursuant to ordinary course of business of the Merger Agreement, Borrower and its Subsidiaries including intercompany Indebtedness of the Borrower and Indebtedness for capital expenditures and working capital purposes and (v) other Indebtedness permitted under Section 6.01 and (vi) other Indebtedness or approved by the Administrative Agent Arrangers in its their reasonable discretion.
(i) The Lenders shall have received received, at the option of the Borrower, (i) a solvency certificate substantially in the form of Exhibit C and signed by a Financial Officer or other officer with reasonably similar duties of the Borrower or (ii) at the Borrower’s option, an opinion from an independent investment bank or valuation firm of nationally recognized standing, in either case, confirming the solvency of Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing Date.
(j) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced at least three Business Days prior to the Closing Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan DocumentDocument on or prior to the Closing Date (which amounts may be offset against the proceeds of the Loans).
(k) Except as set forth in Schedule 5.10 5.12 (which, for the avoidance of doubt, shall override the applicable clauses of the definition of “Collateral and Guarantee Requirement” for the purposes of this Section 4.02) and subject to the grace periods and post-closing periods set forth in such definition, the Collateral and Guarantee Requirement shall be satisfied (or waived) as of the Closing Date.
(l) The Administrative Agent shall have received all documentation and other information required by Section 3.25(a) at least three (3) Business Days before the Closing Date), to the extent such information has been requested not less than ten (10) 10 Business Days prior to the Closing Date.
(m) Since the date of the Merger Agreement, there shall not have occurred any Business Material Adverse Change[Reserved].
(n) The Borrower shall have delivered to the Administrative Agent a certificate, certificate dated as of the Closing Date, to the effect set forth in Section 4.01(b)(i) and Section 4.02(m4.01(b) hereof.
(o) The Administrative Agent shall have received evidence of insurance referred to in Section 5.02, to the extent applicable.
(p) If the Initial Collateral Reporting Date occurs on the Closing Date, the Administrative Agent shall have received a Borrowing Base Certificate. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender 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 the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and, in the case of a Borrowing, such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 1 contract
First Credit Event. On or prior to the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each of Holdings, the Borrower, the Issuing Bank and the Lenders party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery fax or other electronic transmission of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself and itself, the Lenders and each Issuing BankBank on the Closing Date, a written opinion of ▇▇▇▇Weil, Weiss, Rifkind, ▇▇▇▇▇▇▇ Gotshal & ▇▇▇▇▇▇▇▇ LLP, special counsel for Holdings and the Loan Parties Borrower, (A) dated the Closing Date, (B) addressed to each Issuing Bank, the Administrative Agent and the Lenders on the Closing Date and (C) in form and substance reasonably satisfactory to the Administrative Agent, Agent and covering such other matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request, and each of Holdings and the Borrower hereby instructs its counsel to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of in the Secretary or Assistant Secretary or similar officer case of each Loan Party dated each of the Closing Date items referred to in clauses (i), (ii), (iii) and certifying(iv) below:
(i) a copy of the certificate or articles of incorporation, certificate of limited partnership, partnership or certificate of formation or other equivalent constituent and governing documentsformation, including all amendments thereto, of such each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, or (B) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) and a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official),;
(iiiii) a certificate of the secretary or assistant secretary or similar officer 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 limited partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) 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 (iv) belowDate,
(ivB) that attached thereto is a true and complete copy of resolutions duly adopted by the Board board of Directors directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date 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 on the Closing Date,
(vC) that the certificate or articles of incorporation, certificate of limited partnership or certificate of formation of such Loan Party has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above,
(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, and,
(viE) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, Party;
(iii) a certificate of another officer as to the knowledge incumbency and specimen signature of such personthe Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above; and
(iv) a certificate of a Responsible Officer of Holdings or the Borrower certifying that as of the Closing Date (i) all the representations and warranties described in Section 4.01 are true and correct to the extent set forth therein and (ii) that as of the Closing Date, threatening no Default or Event of Default has occurred and is continuing or would result from any Borrowing to occur on the existence date hereof or the application of such Loan Partythe proceeds thereof.
(di) The Collateral and Guarantee Requirement shall have been satisfied, (ii) the Administrative Agent shall have received a duly completed Perfection Certificate, Collateral Questionnaire dated the Closing Date and signed by a Responsible Officer of the BorrowerDate, together with all attachments contemplated thereby, and (iii) the Administrative Agent shall have received the results of a search of the Uniform Commercial Code (or equivalent), tax and judgment ) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and (iv) the Administrative Agent shall have received evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are Permitted Liens either permitted by Section 6.02 or have been, or will be simultaneously or substantially concurrently with the closing under this Agreement, been released (or arrangements authorized for release in a manner reasonably satisfactory to the Administrative Agent for such release shall have been madeAgent).
(e) The Merger shall have been consummated or shall be consummated simultaneously or substantially concurrently with the closing under this Agreement in accordance with the terms and conditions of the Merger as set forth in the Merger Agreement, without giving effect to any amendment, waiver, consent or other modification thereof by Parent or Merger Sub that is materially adverse to the interests of the Arrangers and the Lenders (in their capacities as such) unless it is approved by the Administrative Agent (which approval shall not be unreasonably withheld or delayed).
(f) Prior to, simultaneously, or substantially concurrently with the closing under this Agreement, the Fund or Fund Affiliates and other investors designated by the Fund shall have contributed the Equity Financing.
(g) The Administrative Agent shall have received (i) the financial statements referred to in Section 3.05 and (ii) a pro forma consolidated balance sheet and a related pro forma consolidated statement of income of Holdings and its Subsidiaries (based on the financial statements of Holdings referred to in Section 3.05) as of and for the four consecutive Fiscal Quarter period ending in June of 2013, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other statement of income), which include adjustments customary for Rule 144A transactions, provided, that it being understood that any purchase accounting adjustments may be preliminary in nature and be based only on estimates and allocations determined by the Borrower.
(h) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, none of Holdings, the Borrower or any of their respective subsidiaries shall have any Indebtedness of the type described in clause (a) of the definition thereof other than (i) the Loans and other extensions of credit under this Agreement, (ii) the extensions of credit under the First Lien Credit Agreement, (iii) the extensions of credit under the Second Lien Secured Notes, (iv) other Indebtedness permitted to be incurred or outstanding on or prior to the Closing Date pursuant to the Merger Agreement, (v) other Indebtedness permitted under Section 6.01 and (vi) other Indebtedness approved by the Administrative Agent in its reasonable discretion.
(i) The Lenders shall have received a solvency certificate substantially in the form of Exhibit C and signed by a Financial Officer of the Borrower confirming the solvency of Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing Date.
(j) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced prior to the Closing Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(k) Except as set forth in Schedule 5.10 (which, for the avoidance of doubt, shall override the applicable clauses of the definition of “Collateral and Guarantee Requirement” for the purposes of this Section 4.02) and subject to the grace periods and post-closing set forth in such definition, the Collateral and Guarantee Requirement shall be satisfied (or waived) as of the Closing Date.
(l) The Administrative Agent shall have received all documentation and other information required by Section 3.25(a) at least three (3) Business Days before the Closing Date, to the extent such information has been requested not less than ten (10) Business Days prior to the Closing Date.
(m) Since the date of the Merger Agreement, there shall not have occurred any Business Material Adverse Change.
(n) The Borrower shall have delivered to the Administrative Agent a certificate, dated as of the Closing Date, to the effect set forth in Section 4.01(b)(i) and Section 4.02(m) hereof.
(o) The Administrative Agent shall have received evidence of insurance referred to in Section 5.02, to the extent applicable.
(p) If the Initial Collateral Reporting Date occurs on the Closing Date, the Administrative Agent shall have received a Borrowing Base Certificate. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender 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 the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and, in the case of a Borrowing, such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 1 contract
First Credit Event. On or prior to the Closing Date:.
(a) The Administrative Agent (or its counsel) shall have received from each of Holdings, the Borrower, the Issuing Bank and the Lenders party thereto either (i) a counterpart of this Agreement and each other Loan Document to be executed on or prior to the Closing Date, signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery electronic transmission of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)Agreement) that such party has signed a counterpart of this AgreementAgreement and such other applicable Loan Documents.
(b) The Administrative Agent shall have received, on behalf of itself and itself, the Lenders and each Issuing Bankthe L/C Issuer on the Closing Date, a favorable written opinion of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPLLP and other counsel set forth on Schedule 5.02(b), special counsel for the Loan Parties (A) dated the Closing Date, (B) in each case addressed to each Issuing Bankthe Administrative Agent, the Administrative Agent Lenders and the Lenders on the Closing Date and (C) L/C Issuer, which shall be in form and substance reasonably satisfactory to the Administrative Agent, Agent and covering such matters relating to the Loan Documents as the Administrative Agent shall reasonably request.
(c) The Administrative Agent shall have received a certificate of in the Secretary or Assistant Secretary or similar officer case of each Loan Party dated and the Closing Date Parent Guarantor each of the items referred to in clauses (i), (ii), (iii) and certifying(iv) below, to the extent applicable:
(i) a copy of the certificate or articles of incorporation, certificate of limited partnership, partnership or certificate of formation or other equivalent constituent and governing documentsformation, as applicable, including all amendments thereto, of such each Loan Party, (A) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, or (B) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party as of a recent date from such Secretary of State (or other similar official),, a copy of the deed of incorporation of the Parent Guarantor and a recent extract from the Dutch Trade Register of the Chamber of Commerce (▇▇▇▇▇ van Koophandel, afdeling Handelsregister) relating to the Parent Guarantor;
(iiiii) a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party and the Parent Guarantor dated the Closing Date and certifying;
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) of such Loan Party and the articles of association of the Parent Guarantor as in effect on the Closing Date and at all times since a date prior to the date of the resolutions described in clause (ivB) below,;
(ivB) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party and the Parent Guarantor (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date to which such person is a party and, in the case of the each Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,;
(vC) that the certificate or articles of incorporation, certificate of limited partnership or certificate of formation of such Loan Party has not been amended since the date of the last amendment thereto disclosed pursuant to clause (i) above;
(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, Party (other than the Parent Guarantor); and
(viE) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party and the Parent Guarantor or, to the knowledge of such person, threatening the existence of such Loan PartyParty and the Parent Guarantor;
(iii) a certificate of a director or another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary or similar officer executing the certificate pursuant to clause (ii) above (other than the certificate with respect to the Parent Guarantor); and
(iv) such other documents as the Administrative Agent, the Lenders and any L/C Issuer on the Closing Date may reasonably request (including without limitation, tax identification numbers and addresses).
(d) The Administrative Agent shall have received a completed Perfection Certificate, dated evidence that the elements of the Collateral and Guarantee Requirement required to be satisfied on the Closing Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby, have been satisfied and the results of a search of the Uniform Commercial Code (or equivalent), tax and judgment ) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are Permitted Liens or have been, or will be simultaneously or substantially concurrently with the closing under this Agreement, released (or arrangements reasonably satisfactory to the Administrative Agent for such release shall have been made)released.
(e) The Merger shall have been consummated or shall be consummated simultaneously or substantially concurrently with the closing under this Agreement in accordance with the terms and conditions of the Merger as set forth in the Merger Agreement, without giving effect to any amendment, waiver, consent or other modification thereof by Parent or Merger Sub that is materially adverse to the interests of the Arrangers Administrative Agent and the Lenders (shall have received a solvency certificate substantially in their capacities as such) unless it is approved the form of Exhibit B-1 and signed by the Administrative Agent (which approval shall not be unreasonably withheld Chief Financial Officer or delayed)Treasurer, as applicable, of each Borrower.
(f) Prior to, simultaneously, or substantially concurrently with the closing under this Agreement, the Fund or Fund Affiliates and other investors designated by the Fund shall have contributed the Equity Financing.
(g) The Administrative Agent shall have received a certificate signed by a Responsible Officer of each Borrower certifying as to the matters set forth in Section 5.01 and Section 5.02(i) and (j).
(g) All amounts due or outstanding in respect of each Existing Credit Agreement shall have been (or substantially with the closing under this Agreement shall be) paid in full, all commitments in respect thereof terminated and all guarantees thereof discharged and released, and the Administrative Agent shall have received a “pay-off” letter in respect thereof other than the Existing Letters of Credit, which shall remain outstanding on the Effective Date and continue as Letters of Credit under (and shall be governed by the terms of) this Agreement.
(h) The Administrative Agent and the Lenders shall have received the financial information (i) the financial statements referred to in Section 3.05 and 4.05, (ii) described in Section 6.04(e), on a pro forma consolidated balance sheet quarterly basis through the end of the 2018 fiscal year and a related pro forma consolidated statement on an annual basis through the end of income of Holdings the 2021 fiscal year and its Subsidiaries (based on iii) described in Section 6.04(b) for each quarterly period ended since the last period for which audited financial statements of Holdings referred to in Section 3.05) as of and for the four consecutive Fiscal Quarter period ending in June of 2013are available, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheetthe foregoing clauses (i) or at the beginning of such period and (in the case of such other statement of incomeii), which include adjustments customary for Rule 144A transactions, provided, that it being understood that any purchase accounting adjustments may be preliminary the results and assumptions set forth therein in nature form and be based only on estimates and allocations determined by substance reasonably satisfactory to the BorrowerAdministrative Agent.
(hi) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, none of Holdings, the (x) no Borrower or any of their respective subsidiaries shall have outstanding any Indebtedness of the type described in clause (a) of the definition thereof and each Borrower and its Subsidiaries shall have outstanding no Indebtedness other than (i) the Loans and other extensions of credit under this Agreement, Agreement and (ii) the extensions of credit under the First Lien Credit Agreement, (iii) the extensions of credit under the Second Lien Secured Notes, (iv) other Indebtedness permitted to be incurred or outstanding on or prior to the Closing Date pursuant to the Merger AgreementSection 7.01, (vy) the Holdcos (other than the Parent Guarantor) shall have no Indebtedness permitted under Section 6.01 for borrowed money for which they are liable as primary obligor and (viz) other Indebtedness approved by the Administrative Agent in its reasonable discretion.
(i) The Lenders shall have received a solvency certificate substantially in the form of Exhibit C and signed by a Financial Officer of the Borrower confirming the solvency of Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on issuance of any Letters of Credit hereunder to backstop or otherwise replace any letters of credit outstanding under any Existing Credit Agreement, the Closing DateBorrowers shall have remaining Availability in an amount of not less than $100,000,000.
(j) The Agents Since December 31, 2016 there shall not have received all been any event, development or circumstance that, individually or in the aggregate, has, had or would reasonably be expected to have a Material Adverse Effect.
(k) All fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts and expenses due and payable pursuant to the Loan Documents on or prior to the Closing Date, pursuant to the Engagement Letter or as may otherwise be agreed between the Borrowers and the Joint Lead Arrangers shall have been paid (which amounts, at the option of the Borrowers, may be offset against the proceeds of the Revolving Facility), including, to the extent invoiced prior to the Closing Dateinvoiced, reimbursement or payment of all reasonable and documented out-of-out of pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ Sidley Austin LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document.
(k) Except as set forth in Schedule 5.10 (which, for the avoidance of doubt, shall override the applicable clauses of the definition of “Collateral and Guarantee Requirement” for the purposes of this Section 4.02) and subject to the grace periods and post-closing set forth in such definition, the Collateral and Guarantee Requirement shall be satisfied (or waived) as of the Closing Date.
(l) The Administrative Agent shall have received all insurance certificates satisfying the requirements of Section 6.02 of this Agreement.
(m) The Administrative Agent and each Lender shall have received all documentation and other information required by Section 3.25(a) at least three (3) Business Days before regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Closing Date, USA PATRIOT Act to the extent such information has been requested not less than ten seven (107) Business Days prior to the Closing Date.
(m) Since the date of the Merger Agreement, there shall not have occurred any Business Material Adverse Change.
(n) The Each Borrower shall have delivered delivered, or cause to be delivered, to the Administrative Agent an inventory appraisal from an Acceptable Appraiser and a certificatefield examination for each Borrower, dated as of in each case that are reasonably satisfactory in form and substance to the Administrative Agent on or prior to the Closing Date, to the effect set forth in Section 4.01(b)(i) and Section 4.02(m) hereof.
(o) The Administrative Agent shall have received evidence of insurance referred to in Section 5.02, to the extent applicable.
(p) If the Initial Collateral Reporting Date occurs on the Closing Date, the Administrative Agent shall have received a Borrowing Base CertificateCertificate effective as of the last day of the month immediately preceding the Closing Date. For purposes of determining compliance with the conditions specified in this Section 4.025.02, each Lender 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 the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and, in the case of a Borrowing, and such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing.
Appears in 1 contract
Sources: Credit Agreement (Constellium N.V.)
First Credit Event. On or prior to the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each of Holdings, the Borrower, the Issuing Bank Banks and the Lenders (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself and itself, the Lenders and each Issuing Bank, a written opinion of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as special counsel for the Loan Parties (A) dated the Closing Date, (B) addressed to each Issuing Bank, the Administrative Agent and the Lenders on the Closing Date and (C) in form and substance reasonably satisfactory to the Administrative Agent, Agent covering such matters relating to the Loan Documents as the Administrative Agent shall reasonably request.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying:
(i) a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, (A1) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, or (B2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) 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 (iv) below,
(iv) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date 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 on the Closing Date,
(v) 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, and
(vi) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received a completed Perfection Certificate, dated the Closing Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby, and the results of a search of the Uniform Commercial Code (or equivalent), tax and judgment judgment, United States Patent and Trademark Office and United States Copyright Office filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are Permitted Liens or have been, or will be simultaneously or substantially concurrently with the closing under this Agreement, released (or arrangements reasonably satisfactory to the Administrative Agent for such release shall have been made).
(e) The Merger shall have been consummated or shall be consummated simultaneously or substantially concurrently with the closing under this Agreement in accordance with on the terms and conditions of the Merger as set forth described in the Merger Agreement, without giving effect to any amendment, waiver, consent or other modification thereof by Parent or Merger Sub Holdings that is materially adverse to the interests of the Arrangers and the Lenders (in their capacities as such) unless it is approved by the Administrative Agent Arrangers (which approval shall not be unreasonably withheld withheld, delayed or delayedconditioned).
(f) Prior to, simultaneously, or substantially concurrently with the closing under this Agreement, the Fund or Fund Affiliates and other investors designated by the Fund Co-Investors shall have contributed, directly or indirectly, to Holdings an aggregate amount in cash in the form of common equity or other Equity Interests on terms reasonably acceptable to the Administrative Agent, and which shall be further contributed in the form of common equity to the Borrower (the “Equity Contribution”), which will cause the Equity FinancingInterests of Holdings (including roll-over or contributed Equity Interests not to exceed 3.0% of the Total Pro Forma Consolidated Capitalization of Holdings as of the Closing Date) to represent not less than 27.5% of the Total Pro Forma Consolidated Capitalization of Holdings as of the Closing Date.
(g) The Administrative Agent shall have received (i) the financial statements referred to in Section 3.05 and (ii) a pro forma consolidated balance sheet and a related pro forma consolidated statement of income of Holdings and its Subsidiaries (based on the financial statements of Holdings referred to in Section 3.05) as of and for the four consecutive Fiscal Quarter period ending in June of 2013, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other statement of income), which include adjustments customary for Rule 144A transactions, provided, that it being understood that any purchase accounting adjustments may be preliminary in nature and be based only on estimates and allocations determined by the Borrower.
(h) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, none of Holdings, the Borrower or any of their respective subsidiaries the Subsidiaries shall have any third party Indebtedness of the type described in clause (a) of the definition thereof other than (i) the Loans and other extensions of credit under this Agreement (including the Existing Roll-Over Letters of Credit, which shall be deemed to be Letters of Credit issued under and subject to this Agreement), (ii) the extensions of credit under the First Lien Credit AgreementSenior Unsecured Notes, (iii) the extensions of credit under the Second Lien Secured Notes, (iv) other Indebtedness permitted to be incurred or outstanding on or prior to the Closing Date pursuant to the Merger Agreement, Agreement and (viv) other Indebtedness permitted under Section 6.01 and (vi) other Indebtedness or approved by the Administrative Agent Arrangers in its their reasonable discretion.
(i) The Lenders shall have received a solvency certificate substantially in the form of Exhibit C and signed by a Financial Officer of the Borrower confirming the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions on the Closing Date.
(j) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced at least three Business Days prior to the Closing Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan DocumentDocument on or prior to the Closing Date (which amounts may be offset against the proceeds of the Loans).
(k) Except as set forth in Schedule 5.10 5.12 (which, for the avoidance of doubt, shall override the applicable clauses of the definition of “Collateral and Guarantee Requirement” for the purposes of this Section 4.02”) and subject to the grace periods and post-closing periods set forth in such definition, the Collateral and Guarantee Requirement shall be satisfied (or waived) as of the Closing Date.
(l) The Administrative Agent shall have received all documentation and other information required by Section 3.25(a) at least three (3) Business Days before the Closing Date), to the extent such information has been requested not less than ten (10) Business Days prior to the Closing Date.
(m) Since the date of the Merger Agreement, there shall not have occurred any Business Company Material Adverse ChangeEffect.
(n) The Borrower shall have delivered to the Administrative Agent a certificate, certificate dated as of the Closing Date, to the effect set forth in Section 4.01(b)(i) and Section 4.02(m) hereof.
(o) The Administrative Agent shall have received evidence of insurance referred to in Section 5.02, to the extent applicable.
(p) If the Initial Collateral Reporting Date occurs on the Closing Date, the Administrative Agent shall have received a Borrowing Base Certificate. For purposes of determining compliance with the conditions specified in this Section 4.02, each Lender 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 the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and, in the case of a Borrowing, such Lender shall not have made available to the Administrative Agent such Lender’s ratable portion of the initial Borrowing. Notwithstanding anything to the contrary, it is understood that to the extent any security interest in the intended Collateral or any deliverable (including those referred to in Sections 4.02(d) and (k)) related to the perfection of security interests in the intended Collateral (other than any Collateral the security interest in which may be perfected by the filing of a UCC financing statement or the possession of the stock certificates (if any) of the Borrower or any Domestic Subsidiary (to the extent, with respect to such Subsidiaries, such stock certificates are received from the Company on or prior to the Closing Date after using commercially reasonable efforts)) is not or cannot be provided and/or perfected on the Closing Date (1) without undue burden or expense or (2) after the Borrower has used commercially reasonable efforts to do so, then the provision and/or perfection of such security interest(s) or deliverable shall not constitute a condition precedent to the availability of the Commitments on the Closing Date but, to the extent otherwise required hereunder, shall be delivered after the Closing Date in accordance with Section 5.12.
Appears in 1 contract
Sources: First Lien Credit Agreement (Rackspace Technology, Inc.)
First Credit Event. On or prior to the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each of Holdings, the Borrower, the Issuing Bank Banks and the Lenders (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by facsimile or other means of electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself itself, and the Lenders and each Issuing Bank, a written opinion of ▇▇▇▇, Weiss▇▇▇▇▇, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as special counsel for the Loan Parties (A) dated the Closing Date, (B) addressed to the Administrative Agent, the Collateral Agent, each Issuing Bank, the Administrative Agent Bank and the Lenders on the Closing Date and (C) in form and substance reasonably satisfactory to the Administrative Agent, Agent covering such matters relating to the Loan Documents as the Administrative Agent shall reasonably request.
(c) The Administrative Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying:
(i) that attached thereto is a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, (A1) in the case of a corporation, certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its organization, or (B2) otherwise certified by the Secretary or Assistant Secretary of such Loan Party or other person duly authorized by the constituent documents of such Loan Party,
(ii) that attached thereto is a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdictionLoan Party’s jurisdiction of organization) of such Loan Party as of a recent date from such Secretary of State (or other similar official),
(iii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, limited liability company agreement or other equivalent constituent and governing documents) 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 (iv) below,
(iv) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body) of such Loan Party (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date to which such person is a party and, in the case of the Borrower, the borrowings Borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Closing Date,
(v) 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, and
(vi) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party.
(d) The Administrative Agent shall have received a completed Perfection Certificate, dated the Closing Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby, and the results of a search of the Uniform Commercial Code (or equivalent)Code, tax and judgment judgment, United States Patent and Trademark Office and United States Copyright Office filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are Permitted Liens or have been, or will be simultaneously or substantially concurrently with the closing under this Agreement, released (or arrangements reasonably satisfactory to the Administrative Agent for such release shall have been made).
(e) The Merger shall have been consummated or shall be consummated simultaneously or substantially concurrently with the closing under this Agreement in accordance with the terms and conditions of the Merger as set forth in the Merger Agreement, without giving effect to any amendment, waiver, consent or other modification thereof by Parent or Merger Sub that is materially adverse to the interests of the Arrangers and the Lenders (in their capacities as such) unless it is approved by the Administrative Agent (which approval shall not be unreasonably withheld or delayed).
(f) Prior to, simultaneously, or substantially concurrently with the closing under this Agreement, the Fund or Fund Affiliates and other investors designated by the Fund shall have contributed the Equity Financing.
(g) The Administrative Agent shall have received (i) the financial statements referred to in Section 3.05 and (ii) a pro forma consolidated balance sheet and a related pro forma consolidated statement of income of Holdings and its Subsidiaries (based on the financial statements of Holdings referred to in Section 3.05) as of and for the four consecutive Fiscal Quarter period ending in June of 2013, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other statement of income), which include adjustments customary for Rule 144A transactions, provided, that it being understood that any purchase accounting adjustments may be preliminary in nature and be based only on estimates and allocations determined by the Borrower.
(hf) On the Closing Date, after giving effect to the Transactions and the other transactions contemplated hereby, none of Holdings, the Borrower or any of their respective subsidiaries shall have any Indebtedness of the type described in clause (a) of the definition thereof other than (i) the Loans and other extensions of credit under this Agreement, (ii) the extensions of credit under the First Lien Credit Agreement, (iii) the extensions of credit under the Second Lien Secured Notes, (iv) other Indebtedness permitted to be incurred or outstanding on or prior to the Closing Date pursuant to the Merger Agreement, (v) other Indebtedness permitted under Section 6.01 and (vi) other Indebtedness approved by the Administrative Agent in its reasonable discretion[Reserved].
(ig) The Lenders shall have received a solvency certificate substantially in the form of Exhibit C and signed by a Financial Officer of the Borrower confirming the solvency of the Borrower and its Subsidiaries on a consolidated basis on the Closing Date after giving effect to the Transactions on the Closing Date.
(jh) The Agents shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced, all other amounts due and payable pursuant to the Loan Documents on or prior to the Closing Date, including, to the extent invoiced at least two Business Days prior to the Closing Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan DocumentDocument on or prior to the Closing Date (which amounts may be offset against the proceeds of the Loans).
(ki) Except as set forth in Schedule 5.10 5.12 (which, for the avoidance of doubt, shall override the applicable clauses of the definition of “Collateral and Guarantee Requirement” for the purposes of this Section 4.02”) and subject to the grace periods and post-closing periods set forth in such definition, the Collateral and Guarantee Requirement shall be satisfied (or waived) as of the Closing Date.
(lj) The Administrative Agent Agents or any Lender, as the case may be, shall have received all documentation and other information reasonably required by Section 3.25(a) at least three (3) Business Days before the Closing Date), to the extent such information has been requested not less than ten five (105) Business Days prior to the Closing Date.
(m) Since the date of the Merger Agreement, there shall not have occurred any Business Material Adverse Change.
(nk) The Borrower shall have delivered to the Administrative Agent a certificate, certificate dated as of the Closing Date, to the effect set forth in Section 4.01(b)(i4.01(b) and Section 4.02(m4.01(c) hereof.
(ol) The Administrative Agent Closing Date Refinancing shall have received evidence of insurance referred to in Section 5.02, to the extent applicable.
(p) If the Initial Collateral Reporting Date occurs on the Closing Date, the Administrative Agent shall have received a Borrowing Base Certificatebeen consummated. For purposes of determining compliance with the conditions specified in Section 4.01 and this Section 4.02, each Lender 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 the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated by the Loan Documents shall have received notice from such Lender prior to the Closing Date specifying its objection thereto and, in the case of a Borrowing, such Lender shall not have made available to the Administrative Agent such Lender▇▇▇▇▇▇’s ratable portion of the initial Borrowing.
Appears in 1 contract