Conditions Precedent to Credit Extensions. Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent: (a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party (if applicable): (i) executed counterparts of this Agreement; (ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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; (iv) copies of each Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect; (v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents; (vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture; (vii) intentionally omitted; (viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect; (ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released; (x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement); (xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties; (xii) the Intercreditor Agreement; (A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents; (xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and (xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereof. (b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000. (c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent. (d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009. (e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices. (f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000. (g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents. (h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained. (i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full. (j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger). (k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act. (l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date. (m) intentionally omitted. (n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of Section 9.02, for purposes of determining compliance with the conditions specified in this Section 0, each Lender (other than an Agent or the Canadian Agent) 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. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent: (o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit Extension, 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 as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0. (p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof. (q) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 2 contracts
Sources: Credit Agreement (Quiksilver Inc), Credit Agreement (Quiksilver Inc)
Conditions Precedent to Credit Extensions. 4.01 Conditions to Effectiveness of Initial Credit Extensionthis Agreement (Execution Date). The obligation This Agreement shall be effective upon satisfaction (or waiver in accordance with Section 10.01) of the L/C Issuer and each Lender conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make its initial Credit Extension Extensions hereunder is are subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedentprecedent set forth in Section 4.02 and Section 4.03:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, facsimiles or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) electronic copies (followed promptly by originals) unless otherwise specified, and each properly executed by dated the Execution Date (or, in the case of certificates of governmental officials, a Responsible Officer of recent date before the signing Loan Party (if applicableExecution Date):
(i) executed counterparts of this Agreement;, in the number requested by the Administrative Agent; and
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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;
(iv) copies of each Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying Borrower either (i) (A) stating that the conditions specified in Sections ARTICLE IV(o) all governmental and (p) have been satisfied, (B) either that (1) no consents, licenses or regulatory approvals are required necessary in connection with the execution, execution and delivery and performance by any Loan Party and the validity against such Loan Party Borrower of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals this Agreement have been obtained and are in full force and effect, or (Cii) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereofrequired.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees The Lenders shall have received such documentation and other amounts due information as may be required by them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the Credit Parties information required by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, USA PATRIOT Act and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid information described in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000Section 10.18.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees Any expenses required to be paid by the Borrowers Borrower, to any of the Agents or extent invoiced prior to the Arrangers on or before the Closing Date Execution Date, shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jd) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable Attorney Costs (related to ▇▇▇▇▇▇ and documented fees▇▇▇▇▇, charges LLP) of the Administrative Agent and disbursements of counsels to the Agents and Arrangers Left Lead Arranger to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder Attorney Costs as shall constitute such counsels’ its reasonable estimate of such feesAttorney Costs (related to ▇▇▇▇▇▇ and ▇▇▇▇▇, charges and disbursements LLP) incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of Administrative Agent and the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesLeft Lead Arranger. Without limiting the generality of the provisions of the last paragraph of Section 9.029.03, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder under this Section 4.01 to be Consented 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 Execution Date specifying its objection thereto. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit Extension, 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 as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or shall notify the Canadian AgentLenders and the Borrower of the Execution Date, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, and such notice shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to complyconclusive.
Appears in 2 contracts
Sources: Credit Agreement (ONE Gas, Inc.), Credit Agreement (Oneok Inc /New/)
Conditions Precedent to Credit Extensions. Conditions The effectiveness of Initial Credit Extension. The this Agreement and the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction or waiver in accordance with Section 11.01 of the following conditions precedent, on or prior to November 30, 2021:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) electronically transmitted copies of originals (followed promptly as soon as reasonably practicable by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement;
(ii) the Sixth Amendment to Revolving Credit Agreement, duly executed by the Required Lenders (under, and as defined in, the Revolving Credit Agreement), the Revolving Administrative Agent and each Loan Party;
(iii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iiiiv) a pledge and security agreement, in substantially the form of Exhibit E (the “Security Agreement”), duly executed by each Loan Party, together with:
(A) proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions required to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(B) completed results of a search of the UCC filings made with respect to the Persons in the jurisdictions contemplated by the Collateral Questionnaire, dated on or before the Closing Date, listing all effective financing statements that name any Loan Party as debtor disclosed by such certificates search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements are permitted by Section 7.01 or have been or will be contemporaneously released or terminated, and
(C) evidence of resolutions the completion of all other actions, recordings and filings of or other actionwith respect to the Security Agreement required to perfect (subject to Section 4.7(b) of the Security Agreement, incumbency certificates and/or other certificates in the case of Responsible Officers IP Rights) the Liens created under the Security Agreement;
(v) the First Lien Pari Passu Intercreditor Agreement, duly executed by the Revolving Administrative Agent and each Loan Party;
(vi) (A) a certificate of the secretary or assistant secretary of each Loan Party evidencing dated the Closing Date, certifying (AI) that attached thereto is a true and complete copy of each Organization Document of such Loan Party certified (to the authority extent applicable) as of a recent date by the Secretary of State (or equivalent Governmental Authority) of the state or jurisdiction of its organization, and a certificate as to the good standing of each Loan Party to enter into this Agreement and each Company Group Party as of a recent date, from such Secretary of State, (II) that attached thereto is a true and complete copy of resolutions duly authorizing the other execution, delivery and performance of the Loan Documents to which such Loan Party person is a party party, (III) as to the incumbency and specimen signature of each officer executing any Loan Document and (B) the identity, authority and capacity a certificate of each another Responsible Officer thereof authorized as to act as a Responsible Officer in connection with this Agreement the incumbency and specimen signature of the other Loan Documents secretary or assistant secretary executing the certificate pursuant to which such Loan Party is a partyclause (A) above;
(iv) copies of each Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(vvii) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇B▇▇▇▇ & B▇▇▇▇ LLPL.L.P., special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties in form and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels substance reasonably satisfactory to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsAdministrative Agent;
(viviii) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, Borrower certifying (A) that the conditions specified in Sections ARTICLE IV(oclauses (h) and (pi) of Article IV have been satisfied, satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either that individually or in the aggregate, a Material Adverse Effect;
(1ix) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any Loan Party and Closing Date Projections;
(x) certificates attesting to the validity against such Loan Party Solvency of the Loan Documents to which it is Parties, taken as a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date whole after giving effect to the transactions contemplated herebyTransaction, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies chief financial officer of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);Holdings; and
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-completed Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case Questionnaire dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied each Loan Party, together with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions attachments contemplated hereby shall have been obtainedthereby.
(i) All fees required to be paid by to the Borrowers to any of Administrative Agent and the Agents or the Arrangers Arranger on or before the Closing Date Date, including pursuant to the Fee Letter, shall have been paid in full, and (ii) all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date Date, including pursuant to the Fee Letter, shall have been paid in fullpaid.
(jc) The Borrowers Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent directly to such counsel to the extent payable by the Borrowers hereunder and invoiced within two Business Days prior to or on the Closing Date.
(d) At least three (3) Business Days prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by (i) the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations includingregulations, without limitationincluding the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001) the Patriot “PATRIOT Act.
”) that has been requested at least ten (l10) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred days prior to the Closing DateDate and (ii) any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
(m) intentionally omitted.
(ne) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of Section 9.02, for purposes of determining compliance with the conditions specified in this Section 0, each Lender (other than an Agent or the Canadian Agent) 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 Parent the Audited Financial Statements referred to in Section 5.05(a) and the proposed Closing Date specifying its objection thereto. Conditions unaudited financial statements referred to all Credit Extensions. The obligation in Section 5.05(b) (it being understood that the audited financial statements filed on Form 10-K or Form 10-Q with the SEC shall satisfy the condition set forth in this clause (e)).
(f) No event, circumstance or change shall have occurred since the date of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loanthe Audited Financial Statements that has resulted, or could reasonably be expected to result in, either in any case or in the aggregate, a continuation Material Adverse Effect or a material adverse change in, or material adverse effect upon, the operations, business, properties, liabilities or financial condition of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:Project Companies taken as a whole.
(og) The representations and warranties of the Borrowers and each other Loan Party Parties contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, in except to the case of extent any such representation and warranty itself is qualified by “materiality”, “Material Adverse Effect” or any similar qualifier, in which case, it shall be true and correct in all respects) on and as of the date of such Credit Extension, 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 as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(ph) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(qi) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension Committed Loan Notice in accordance with the requirements hereof. Each Request for a Credit Extension Committed Loan Notice (other than a Committed Loan Notice requesting only a conversion of a Committed Loan Loans to another the other Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Term SOFR Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(oclauses (g) and (ph) of this Article IV have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for Without limiting the sole benefit generality of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreementclause (f) of Section 9.03, and which, notwithstanding the failure for purposes of the Loan Parties to comply determining compliance with the provisions of conditions specified in this Article IV, are agreed 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 or shall have received notice from such Lender prior to the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to complyproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Senior Secured Bridge Credit Agreement (Clearway Energy LLC), Senior Secured Bridge Credit Agreement (Clearway Energy, Inc.)
Conditions Precedent to Credit Extensions. 4.01 Conditions to Effectiveness of Initial Credit Extensionthis Agreement (Execution Date). The obligation This Agreement shall be effective upon satisfaction (or waiver in accordance with Section 11.01) of the L/C Issuer and each Lender conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make its initial Credit Extension Extensions hereunder is are subject to satisfaction (or waiver in accordance with Section 11.01) of the following conditions precedentprecedent set forth in Section 4.02 and Section 4.03:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) facsimiles (followed promptly by originals) unless otherwise specified, and each properly executed by dated the Execution Date (or, in the case of certificates of governmental officials, a Responsible Officer of recent date before the signing Loan Party (if applicableExecution Date):
(i) executed counterparts of this Agreement, in the number requested by the Administrative Agent;
(ii) the following, each in form and substance satisfactory to the Administrative Agent: a Note executed by each applicable certificate of the secretary or an assistant secretary of the General Partner on behalf of the Parent Guarantor and the Borrower in favor certifying as to the incumbency and genuineness of the signature of each Lender requesting officer of the General Partner executing the Loan Documents and certifying that attached thereto is a Note;
(iii) such certificates true, correct and complete copy of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing (A) the authority certificate of each Loan Party to enter into limited partnership or formation of such party and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of incorporation or formation, (B) the limited partnership agreement, limited liability company agreement or other governing document of such party as in effect on the Execution Date, and (C) resolutions duly adopted by the board of directors (or other governing body) of such party authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Agreement and the other Loan Documents to which such Loan Party is a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party it is a party;
(iviii) copies of each Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form General Partner on behalf of the Parent Guarantor and substance to the Agents, certifying (A) Borrower stating that the conditions specified in Sections ARTICLE IV(o) all governmental and (p) have been satisfied, (B) either that (1) no consents, licenses or regulatory approvals are required necessary in connection with execution and delivery of this Agreement by the execution, delivery and performance by any Loan Party Parent Guarantor and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals Borrower shall have been obtained and are be in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis or stating that no such approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been maderequired; and
(xviv) (A) all UCC financing statements certificates evidencing existence and PPSA financing statementsgood standing of each Loan Party, required by Law or reasonably requested issued by the Agents or applicable Governmental Authority of the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereofstate where each is organized.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent Lenders shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information as may be required by regulatory authorities under them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations includingregulations, without limitation, including the Patriot Act.
(l) Since June 8, 2009, no material changes information required by the USA PATRIOT Act and information described in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesSection 11.19. Without limiting the generality of the provisions of the last paragraph of Section 9.029.03, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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 Execution Date specifying its objection thereto. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit Extension, 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 as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or shall notify the Canadian AgentLenders and the Borrower of the Execution Date, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, and such notice shall be deemed to be a representation conclusive and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to complybinding.
Appears in 2 contracts
Sources: Credit Agreement (Qep Resources, Inc.), Credit Agreement (QEP Midstream Partners, LP)
Conditions Precedent to Credit Extensions. Conditions of Initial Credit Extension. The obligation of the each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) : The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) copies (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Borrower, as applicable, each dated the Closing Date (if applicable):
(ior, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders: executed counterparts of this Agreement;
(ii) ; a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) ; such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party the Borrower as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 Documents; such documents and certifications as the Administrative Agent may reasonably require to which such Loan Party evidence that the Borrower is a party;
(iv) copies of each Loan Party’s certificate duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that the Borrower is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in business in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation it is organized; written opinion(s) of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan PartiesBorrower, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of Section 9.02, for purposes of determining compliance with the conditions specified in this Section 0, each Lender (other than an Agent or the Canadian Agent) 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. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit Extension, 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 as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.;
Appears in 1 contract
Sources: Credit Agreement (DPL Inc)
Conditions Precedent to Credit Extensions. 4.01 Conditions of to the Initial Credit ExtensionBorrowing on the Closing Date. The obligation obligations of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is are subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedentprecedent on the Closing Date:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or originals, telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) .pdfs (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Parties which are party thereto, each dated the Closing Date (if applicableor, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of this AgreementAgreement bearing the signatures of each of the Borrower, the Administrative Agent and each Lender with commitments to make Loans as designated on Schedule 2.01;
(ii) a an original Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer on behalf of such Loan Party in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each of the Loan Parties is duly organized or formed, validly existing and in good standing in its jurisdiction of organization, including, certified copies of each the Organization Documents of the Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate Parties, certificates of good standing (where applicable, or such other customary functionally equivalent certificates, to of the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse EffectParties;
(v) a favorable opinion opinions of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ Lovells US LLP, special counsel to the Domestic Loan Borrower and the Guarantors organized in Delaware, California, Massachusetts, Texas, Pennsylvania and Virginia, in each case, in form and substance reasonably satisfactory to the Administrative Agent and the Secured Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) copies of the financial statements referred to in Section 5.05(a) and a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying Borrower (A) certifying that the conditions specified in Sections ARTICLE IV(o4.02(a) and (pb) have been satisfied, satisfied and (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect certifying to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, condition set forth in clauses (e) and (Df) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenturebelow;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, insurance certificates or other evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in full force, including in either case evidence that the Administrative Agent, on behalf of the Lenders, is an additional insured or lender’s loss payee, as the case may be, under all endorsements insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral;
(viii) all original certificates evidencing all of the issued and outstanding shares of capital stock or other Equity Interest required to be pledged pursuant to the terms of the Security Agreement, which certificates shall be accompanied by undated stock powers duly executed in blank by each relevant pledgor in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form all notes and substance instruments required to be pledged pursuant to the Agents evidencing that terms of the Existing Credit Agreement has been or concurrently with Security Agreement, duly endorsed in blank by each relevant pledgor in favor of the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, releasedAdministrative Agent;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and certified copies of certificates evidencing any stock being pledged under Uniform Commercial Code Requests for Information or Copies (Form UCC-11) or similar search reports certified by a party acceptable to the Pledge Agreement on Administrative Agent, dated a date reasonably near (but prior to) the Closing Date (to Date, listing all effective UCC financing statements, tax liens and judgment liens since the extent required by date of such searches in connection with the Pledge Agreement)Existing Credit Agreement which name any Loan Party, as the debtor, together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties such financing statements (originals none of which are being delivered (other than financing statements filed pursuant to the US Term Loan Agent subject to terms hereof in favor of the Intercreditor AgreementAdministrative Agent) shall cover any of the Collateral, other than Liens existing on the Closing Date and permitted by Section7.01);
(xi) all acknowledgment copies of UCC financing statements (or delivery in proper form for filing) naming the Borrower and each other Loan Documents set forth on Schedule 4.01(a)(xi) heretoParty as the debtor and the Administrative Agent as the secured party, each duly executed by which such UCC financing statements have been filed, or have been delivered for filing, under the applicable Loan PartiesUCC of all jurisdictions as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the first priority security interest of the Administrative Agent pursuant to the Security Agreement;
(xii) evidence that all other action that the Intercreditor Agreement;
Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents has been taken (A) a written report regarding the results including, without limitation, receipt of a commercial finance examination of the Loan Partiesduly executed payoff letters, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which UCC-3 termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been madestatements); and
(xvxiii) (A) all UCC financing statements such other assurances, certificates, documents, consents and PPSA financing statementswaivers, required by Law estoppel certificates, or reasonably requested by opinions as the Agents Administrative Agent, the L/C Issuer, the Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have receivedreceived certification, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and receivedAdministrative Agent, or substantially simultaneously with as to the initial Credit Extension under this Agreement shall receive, gross proceeds solvency (as described in Section 5.24) of the Term Loans in Borrower, individually, and the Loan Parties, taken as a minimum amount whole from the chief financial officer of $125,000,000the Borrower.
(gc) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto Any fees and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees expenses required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid paid, including those fees and expenses set forth in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullEngagement Letter.
(jd) The Borrowers Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents Administrative Agent and the Arrangers to the extent payable by the Borrowers hereunder and invoiced at least three Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by of counsel to the Borrowers hereunder Administrative Agent and the Arrangers as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements of counsel to the Administrative Agent incurred or to be incurred by it through the closing proceedings to the extent invoiced at least three Business Days prior to or on the Closing Date (provided provided, that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or Arrangerthe Administrative Agent).
(ke) Since December 31, 2020, no changes or developments shall have occurred that either individually or in the aggregate constitutes or has had or could reasonably be expected to constitute or have a Material Adverse Effect.
(f) The Agents representations and warranties of the Borrower and each other Loan Party contained in ARTICLE V or any other Loan Document shall be true and correct in all material respects (or, if any such representation or warranty is by its terms qualified by concepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects), 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 (or, if any such representation or warranty is by its terms qualified by concepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects) as of such earlier date.
(g) Prior to, or substantially concurrently with, the borrowing of the Loans on the Closing Date, the Borrower shall have received (i) repaid all outstanding principal, together with all accrued and unpaid interest, in respect of Indebtedness under and as defined in the Existing Credit Agreement and permanently terminated all commitments thereunder and (ii) redeemed in full all of the Borrower’s Existing Notes.
(h) Upon the reasonable request of any Lender made at least 5 days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information required by regulatory authorities under so requested in connection with applicable “know your customer” and anti-money money-laundering rules and regulations regulations, including, without limitation, the Patriot PATRIOT Act.
, in each case at least 2 days prior to the Closing Date and (ly) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred at least 5 days prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date , any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have occurred on or before July 31delivered, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Dateto each Lender that so requests, and a Beneficial Ownership Certification in relation to such notice shall be conclusive and binding on the Loan PartiesParty. Without limiting the generality of the provisions of Section 9.029.04, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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. .
4.02 Conditions to all Credit Extensions. The Other than as may be expressly set forth in Section 2.16 in connection with the establishment of any Incremental Facilities, the obligation of each Lender and the L/C Issuer to honor any Request for Credit Extension (other than a Committed Loan Notice Request for Credit Extension requesting only a conversion of a Committed Loan Loans to another Type of Committed Loanthe other Type, or a continuation of LIBO Eurodollar Rate Loans or BA Equivalent Loans, but including, for the avoidance of doubt, any Request for Credit Extension requesting a Borrowing on the Closing Date) and of each L/C Issuer to issue each Letter of Credit is subject to the satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent:
(oa) The representations and warranties of the Borrowers Borrower and each other Loan Party contained in Article V or any other Loan Document, Document shall be true and correct in all material respects (or, in the case of if any such representation and or warranty is by its terms qualified by materialityconcepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects) on and as of the date of such Credit Extension, (i) 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 (or, if any such representation or warranty is by its terms qualified by concepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects) as of such earlier datedate and (ii) except that, and except that for purposes of this Section 04.02, the representations and warranties contained in subsections subsection (a), (b) and (f) of Section 5.01 5.05 shall be deemed to refer to the most recent statements, if any, statements furnished pursuant to clauses subsections (a), (b) and (db), respectively, of Section 06.01.
(pb) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(qc) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan Loans to another the other Type of Committed Loan or a continuation of LIBO Eurodollar Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o4.02(a) and (p4.02(b) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Conditions Precedent to Credit Extensions. 4.01 Conditions of Initial Credit Extension. The obligation Effectiveness of this Agreement on the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:Closing Date
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or originals, telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” “via e-mail”) (followed promptly by originals) unless otherwise specified, 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 Agent:
(i) counterparts of this Agreement each properly executed by a Responsible Officer of the signing Loan Party (if applicable):
(i) executed counterparts of this Agreementand the Lenders sufficient in number for distribution to the Agent, each Lender and the Lead Borrower;
(ii) a Note executed by each applicable Borrower the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to become a party and (B) 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 become a party;
(iv) copies of each Loan Party’s certificate or articles of incorporation Organization Documents and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificatesdocuments and certifications as the Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, LLP, counsels counsel to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary such matters concerning the Canadian Loan Parties and the Loan DocumentsDocuments as the Agent may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, Borrower certifying (A) that the conditions specified in Sections ARTICLE IV(o) 4.01 and (p) 4.02 have been satisfied, (B) that there has been no event or circumstance since July 31, 2021 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ixviii) a payoff letter from the agent Existing Agent for the lenders under the Existing Credit Agreement reasonably Agreement, satisfactory in form and substance to the Agents Agent, evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder have been or concurrently with the Closing Date are being paid in full (except to the extent expressly set forth therein)full, and all Liens securing obligations under the Existing Credit Agreement have been, been or concurrently with the Closing Date are being, releasedbeing released and terminated;
(ix) the Security Documents;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) heretoDocuments, each duly executed by the applicable Loan Parties;
(xiixi) an appraisal of all Eligible Inventory by a third party appraiser acceptable to the Intercreditor Agreement;
(A) Agent, a written report regarding the results of a commercial finance field examination of with respect to the Loan Parties, which shall be and all other diligence, reports, audits or certifications as the Agent may reasonably request, in each case in form and substance reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xivxii) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents Agent (in each case dated as of a date reasonably satisfactory to the Co-Collateral AgentsAgent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases satisfactory to the Agent are being tendered concurrently with the initial such extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made; and;
(xv) (A) all UCC financing statements documents and PPSA instruments, including Uniform Commercial Code financing statements, required by Law law or reasonably requested by the Agents or the Canadian Agent, as applicable, Agent to be filed, registered or recorded to create, create or perfect or protect the first priority Liens intended to be created under the Loan DocumentsDocuments and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Agent, (B) the Credit Card Notifications, and Account Control Agreements required pursuant to Section 6.12 hereof shall have been obtained, and (BC) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior control agreements with respect to the Closing Date pursuant to Section 6.07 hereofLoan Parties’ securities and investment accounts have been obtained; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing DateLoans, (ii) the payment of all fees and other amounts due any charges to the Credit Parties by Loan Account made in connection with the Borrowers on the Closing Date as required under the Loan Documents, credit facility contemplated hereby and (iii) all Letters of Credit to be issued on at, or immediately subsequent to, the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,00060,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June September 30, 20092021, and executed by a Responsible Officer of the Lead Borrower or the ParentBorrower.
(d) The Co-Collateral Agents Agent shall be reasonably satisfied with that any financial statements delivered to it and the results Lenders fairly present the business and financial condition of the inventory appraisal conducted by Great American Group dated AprilLoan Parties and that there has been no Material Adverse Effect since July 31, 20092021.
(e) The Administrative Agent and the Lenders shall have received, received and be satisfied with (i) reasonably detailed financial projections and business assumptions for the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent Lead Borrower and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (iix) on a detailed forecast for monthly basis through the period commencing with the Fiscal Quarter ending July 31January 29, 2009 and ending with the end of the Fiscal Quarter ending October 31, 20102022, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by monthand (y) on an annual basis for each of the three years thereafter, which shall include a Consolidated income statement and balance sheet, in each case prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practicespractices and (ii) such other information (financial or otherwise) reasonably requested by the Agent.
(f) The Lead Borrower There shall not be pending any litigation or any Subsidiary shall other proceeding, the result of which, either individually or in the aggregate, could reasonably be expected to have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000Material Adverse Effect.
(g) The Agents There shall not have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies occurred any default of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agentsany Material Contract of any Loan Party.
(h) All necessary consents and approvals to The consummation of the transactions contemplated hereby shall have been obtainednot violate any Law or any Organization Document.
(i) All fees required to be paid by to the Borrowers to any of the Agents Agent or the Arrangers Arranger on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings Closing Date (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arrangerthe Agent).
(k) The Agents Upon the reasonable request of the Agent or any Lender made at least ten (10) days prior to the Closing Date, the Lead Borrower shall have received all provided to the Agent and such Lender the documentation and other information required by regulatory authorities under so requested in connection with applicable “know your customer”, Anti-Corruption Laws and Anti-Money Laundering, including the Act, in each case at least five (5) days prior to the Closing Date. At least five (5) days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” and anti-money laundering rules and regulations including, without limitation, under the Patriot ActBeneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower.
(l) Since June 8, 2009, no No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date There shall not have occurred on any disruption or before July 31material adverse change in the United States financial or capital markets in general that has had, 2009. The Administrative Agent shall notify in the Lead Borrower and the Lenders reasonable opinion of the Closing DateAgent, and such notice shall be conclusive and binding a material adverse effect on the Loan Partiesmarket for loan syndications or adversely affecting the syndication of the Loans. Without limiting the generality of the provisions of Section 9.029.04, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) 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. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit Extension, 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 as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Conditions Precedent to Credit Extensions. 4.01. Conditions of Precedent to Initial Credit Extension. The obligation effectiveness of the L/C Issuer and each Lender to make its initial Credit Extension hereunder this Agreement is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of Agent shall have received the following, each dated the Effective Date (or, in the case of which shall be originals or telecopies or other electronic image scan transmission (e.g.certificates of governmental officials, “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specifieda recent date before the Effective Date), and each properly executed by a Responsible Officer of in form and substance reasonably satisfactory to the signing Loan Party (if applicable):Administrative Agent:
(i) executed counterparts of this Agreement;
(ii) a Note Notes executed by each applicable the Borrower in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, equivalent action and incumbency certificates and/or other certificates of Responsible Officers of each Loan Party the Borrower evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party the Borrower is a party;
(iv) copies documents and certifications evidencing that the Borrower is validly existing and in good standing in its jurisdiction of each Loan Party’s organization;
(v) a certificate or articles signed by a Responsible Officer of incorporation and bylaws the Borrower certifying
(or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdictionA) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that, other than as publicly disclosed in the Form 10-K of the Borrower for the fiscal year ended December 31, 2023, there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a certificate of good standing Material Adverse Effect; (where applicableC) the current Debt Ratings and (D) that there are no actions, suits, investigations or such other customary functionally equivalent certificatesproceedings pending or, to the extent available knowledge of the Borrower, threatened in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease any court or operation of properties before any arbitrator or the conduct of its business requires such qualification, except to the extent governmental authority that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(vvi) a favorable customary opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels counsel to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance reasonably satisfactory to the Agents, certifying (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note IndentureAdministrative Agent;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Effective Date is being terminated, all obligations thereunder terminated (other than those terms therein that are being paid expressly stated to survive termination or repayment in full (except to the extent expressly set forth thereinfull), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xvviii) (A) all UCC financing statements and PPSA financing statements, required by Law a solvency certificate from the treasurer or reasonably requested by other financial officer of the Agents or Borrower substantially in the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereofform of Exhibit I hereto.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all All accrued and invoiced fees and other amounts due expenses of the Lead Arrangers, the Administrative Agent and the Lenders (including the fees and expenses of counsel for the Administrative Agent) required to be paid on or before the Effective Date shall have been paid, to the Credit Parties by extent invoiced at least three (3) Business Days prior to the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Effective Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect at least 3 Business Days prior to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Effective Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money money-laundering rules and regulations regulations, including, without limitation, the Patriot PATRIOT Act.
(l) Since June 8, 2009in each case, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred to the extent requested by the Administrative Agent at least 10 days prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Effective Date, and such notice shall be conclusive and binding on (ii) at least 3 Business Days prior to the Loan PartiesEffective Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower, to the extent requested by the Administrative Agent at least 10 days prior to the Effective Date. Without limiting the generality of the provisions of Section 9.029.04, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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 Effective Date specifying its objection thereto. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit Extension, 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 as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or shall notify the Canadian AgentBorrower and the Lenders of the occurrence of the Effective Date, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, and such notice shall be deemed to be a representation conclusive and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to complybinding.
Appears in 1 contract
Conditions Precedent to Credit Extensions. Section4.01. Conditions of to the Initial Credit ExtensionExtension on the Closing Date. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder on the Closing Date is subject to satisfaction or due waiver in accordance with Section 10.01 of each of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent:
(ai) The Administrative Agent’s receipt Agent shall have received all of the following, each of which shall be originals or telecopies facsimiles or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) files (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated as of the Closing Date (if applicableor, in the case of certificates of governmental officials, as of a recent date before the Closing Date), and each accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to Holdings and its Subsidiaries, giving effect to the Transactions):
(i1) executed counterparts of (A) this Agreement from Holdings, the Borrower, the Administrative Agent, L/C Issuers and the initial Lenders, (B) the Holdings Guaranty from Holdings and the Administrative Agent, (C) the Subsidiary Guaranty from each Loan Party (other than Holdings) and the Administrative Agent, (D) the Intercompany Subordination Agreement and (E) the Perfection Certificate;
(2) the Security Agreement, duly executed by Holdings, the Borrower and each Subsidiary Guarantor, together with (subject to Schedule 6.16):
(a) certificates, if any, representing the Pledged Interests in the Borrower and, to the extent received by Holdings after Holdings’ use of commercially reasonable efforts to receive such certificates or otherwise without undue burden or expense, each wholly owned Subsidiary other than Immaterial Subsidiaries, accompanied by undated stock powers executed in blank (or stock transfer forms, as applicable) and instruments evidencing the Pledged Debt indorsed in blank (or instrument of transfer, as applicable) shall have been delivered to the Collateral Agent,
(b) copies of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all United States jurisdictions that the Collateral Agent may deem reasonably necessary in order to perfect and protect the Liens on assets of each Loan Party created under the Security Agreement, covering the Collateral described in the Security Agreement, and
(c) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby (subject to the Perfection Exceptions) shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (including receipt of duly executed payoff letters, customary lien searches and UCC-3 termination statements);
(3) an Intellectual Property Security Agreement, duly executed by the Collateral Agent and each Loan Party that owns intellectual property that is required to be pledged in accordance with the Security Agreement;
(ii4) a Note executed by each applicable the Borrower in favor of each Lender requesting a NoteNote reasonably in advance of the Closing Date;
(iii5) a Committed Loan Notice and a Letter of Credit Application, if applicable, in each case relating to the initial Credit Extension;
(6) a solvency certificate executed by the chief financial officer or similar officer, director or authorized signatory of Holdings (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit G;
(7) such certificates of resolutions or other actiondocuments and certifications (including Organization Documents and, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing if applicable, good standing certificates) as the Administrative Agent may reasonably require to evidence (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act of the Loan Parties acting as a Responsible Officer such in connection with this Agreement and the other Loan Documents to which such Loan Party and (B) that Holdings, the Borrower and each Subsidiary Guarantor is a party;
(iv) copies duly organized or formed, and that each of each Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificatesthem is validly existing and, to the extent available applicable, in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualificationgood standing, except to the extent that failure to be so qualify in such jurisdiction qualified could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable 8) an opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels special New York counsel to Holdings, the Canadian Loan PartiesBorrower and the Subsidiary Guarantors, addressed to the Canadian Agent and each Canadian LenderSecured Party, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds Administrative Agent; and
(9) a certificate of a Responsible Officer of the Term Loans Borrower certifying that the condition set forth in a minimum amount of $125,000,000Section 4.01(d)(i)(A), 4.01(e), 4.01(f) and 4.01(g) have been satisfied.
(gii) The Agents Holdings, the Borrower and the other Guarantors shall have received (i) provided the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information reasonably requested in writing at least ten business days prior to the Closing Date by the Arrangers as they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money money-laundering rules and regulations regulations, including, without limitation, the Patriot PATRIOT Act.
(l) Since June 8, 2009and a Beneficial Ownership Certification, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred each case at least three business days prior to the Closing Date.
Date (m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of Section 9.02, for purposes of determining compliance with the conditions specified in this Section 0, each Lender (other than an Agent or the Canadian Agent) 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 shorter period as the Administrative Agent shall otherwise agree).
(iii) The Second Lien Facility Documentation required by the terms of the Second Lien Credit Agreement and the First Lien/Second Lien Intercreditor Agreement shall have received notice from such Lender prior been duly executed and delivered by each Loan Party thereto to the proposed Closing Date specifying its objection thereto. Conditions to all Credit Extensions. The obligation Second Lien Administrative Agent and shall be in full force and effect, and substantially contemporaneously with the funding of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loanthe Facilities, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:Second Lien Facility shall be funded.
(oiv) The (i) (A) the representations and warranties of the Borrowers Borrower and each other Loan Party contained in Article V or any other Loan Document, Document shall be true and correct in all material respects respects; and (orB) the Refinancing shall have been, in or shall concurrently with the case of any representation and warranty qualified by materiality, in all respects) on and as initial funding of the date of such Credit ExtensionFacilities be, except consummated.
(1) All fees required to be paid on the Closing Date pursuant to this Agreement, the Engagement Letter, the Agency Fee Letter and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to this Agreement, the Engagement Letter and the Agency Fee Letter, 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 as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer invoiced at least three Business Days prior to the most recent statements, if any, furnished pursuant to clauses Closing Date (aor such later date as the Borrower may reasonably agree) shall have been paid (which amounts may be offset against the proceeds of the Facilities), (b) and (d), respectively, of Section 0.
(pv) Since December 31, 2018, there shall not have occurred any Material Adverse Effect.
(vi) No Default or Event of Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereoftherefrom on the Closing Date.
(qvii) The Administrative Agent Acquisition shall have been consummated or, substantially concurrently with the initial borrowing under this Agreement, shall be consummated, in whole or in part, with the Canadian Agent, if applicable, and, if applicableproceeds of the Preferred Equity, the L/C Issuer or Term Loans and the Swing Line Lender shall have received a Request Second Lien Loans. Without limiting the generality of the provisions of Section 9.03, for Credit Extension in accordance purposes of determining compliance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion conditions specified in this Section 4.01, each Lender as of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, Closing Date shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but Lender unless and until the Required Lenders otherwise direct the Administrative Agent and shall have received written notice from such Lender prior to the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to complyClosing Date specifying its objection thereto.
Appears in 1 contract
Sources: First Lien Credit Agreement (ZoomInfo Technologies Inc.)
Conditions Precedent to Credit Extensions. Conditions of Initial Credit ExtensionExtension . The effectiveness of this Agreement and the obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):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 this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing and qualified to engage in business in (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdictionA) from such Loan Party’s its jurisdiction of organization and from (B) each jurisdiction where such Loan Party’s 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (xA) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, in-house counsel to the Loan Parties, and (B) ▇▇▇▇▇▇▇ LLP, counsels special counsel to the Canadian Loan Parties, in each case, addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary the matters concerning the Canadian Loan Parties and the Loan DocumentsDocuments as the Administrative Agent may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since December 31, 2011 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) thatthat no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have a Material Adverse Effect and (D) a calculation of the ratio of Total Indebtedness to Total Asset Value as of the Closing Date last day of the fiscal quarter of the REIT ending September 30, 2012;
(viii) a Solvency Certificate from the REIT certifying that, after giving effect to the transactions contemplated herebyto occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), each Loan Parties Party is, individually and together with its Subsidiaries on a consolidated basis are basis, Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(viiix) intentionally omittedan Availability Certificate;
(viiix) except as set forth in a Compliance Certificate, giving pro forma effect to the post-transactions to occur on the Closing LetterDate (including, without limitation, all Credit Extensions to occur on the Closing Date) (such Compliance Certificate, the “Pro Forma Closing Date Compliance Certificate”);
(xi) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
effect (ix) a payoff letter from and the agent for the lenders under the Existing Credit Agreement reasonably amount, types and terms and conditions of all such insurance shall be satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth thereinAdministrative Agent), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(Afinancial statements referenced in Section 5.05(a) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been madeb); and
(xvxiii) (A) all UCC financing statements and PPSA financing statementssuch other assurances, required by Law certificates, documents, consents or reasonably requested by opinions as the Agents Administrative Agent, the L/C Issuer, the Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding Any fees required hereunder or under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required Fee Letter to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Completion of all due diligence with respect to the REIT, the Borrower, and their respective Subsidiaries and properties in scope and determination satisfactory to the Administrative Agent, the Arrangers and Lenders in their sole discretion.
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced (which invoice may be in summary form) prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or Arrangerthe Administrative Agent).
(ke) The Agents shall have received all documentation representations and warranties of the Borrower and each other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party contained in Article V or any Credit Party other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower be true and the Lenders correct as of the Closing Date, and Date (except to the extent any such notice shall be conclusive and binding on the Loan Partiesrepresentation or warranty only speaks of a different date). Without limiting the generality of the provisions of the last paragraph of Section 9.029.03, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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. . Conditions to all Credit ExtensionsExtensions . The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan Loans to another Type of Committed Loanthe other Type, or a continuation of LIBO Eurodollar Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(oa) The representations and warranties of the Borrowers Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit Extension, 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 as of such earlier date, and except that for purposes of this Section 04.02, the representations and warranties contained in subsections (a), ) and (b) and (f) of Section 5.01 5.05 shall be deemed to refer to the most recent statements, if any, statements furnished pursuant to clauses subsections (a), (b) and (db), respectively, of Section 06.01.
(pb) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(qc) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.
(d) After giving effect to the proposed Credit Extension, Availability shall be greater than or equal to $0. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan Loans to another the other Type of Committed Loan or a continuation of LIBO Eurodollar Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o4.02(a), (b) and (pd) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Conditions Precedent to Credit Extensions. Section 1. 0a Conditions of to the Initial Credit ExtensionExtension on the Closing Date. The obligation of the L/C Issuer and each Lender Lenders to make its the initial Credit Extension hereunder on the Closing Date is subject to satisfaction or due waiver in accordance with Section 10.01 of each of the following conditions precedent, except as otherwise agreed between Parent and the Administrative Agent:
(ai) The Administrative Agent’s receipt Agent shall have received all of the following, each of which shall be originals or telecopies facsimiles or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) files unless otherwise specified, and each properly and duly executed by a Responsible Officer of the signing Loan Party or Holdings, as applicable, each dated as of the Closing Date (if applicable):or, in the case of certificates of governmental officials, as of a recent date 120 before the Closing Date or, in the case of the certificate of good standing with respect to Holdings to be delivered under paragraph (v) below, not more than 30 days prior to the Closing Date), and each accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect the Loan Parties, giving effect to the Transactions and Liens under Closing Date Collateral Documents), in each case except as specified on Schedule 6.16:
(i1) executed counterparts of (A) this AgreementAgreement from the Parent, the Borrower, the Administrative Agent, the Collateral Agent and the initial Lenders and (B) the Guaranty from the Isle of Man Loan Party, the U.S. Loan Parties, the English Loan Parties, the Administrative Agent and the Collateral Agent and (C) the Intercompany Subordination Agreement from Holdings, the Parent, the U.S. Loan Parties, the English Loan Parties, the Administrative Agent and the Collateral Agent;
(ii2) a Note the Closing Date Collateral Documents, duly executed by each applicable Borrower in favor of each Lender requesting a Notethe Loan Parties thereto, Holdings and the Collateral Agent, as applicable;
(iii3) a Committed Loan Notice relating to the initial Credit Extension;
(4) a solvency certificate executed by the chief financial officer or similar officer, director or authorized signatory of Parent (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit F;
(5) such certificates of good standing or status (to the extent that such concepts exist) from the applicable secretary of state (or equivalent authority) of the jurisdiction of organization or incorporation of each Loan Party and Holdings incorporated in the U.S. or the Cayman Islands (in each case, to the extent applicable);
(6) a copy of the constitutional documents of each U.S. Loan Party, each English Loan Party, the Isle of Man Loan Party and Holdings, being, in the case of Holdings, its certificate of incorporation, all its certificates of incorporation on change of name, if any, and its memorandum and articles of association;
(7) the register of directors, the register of officers and the register of mortgages and charges of Holdings;
(8) copy of a resolution of the board of directors (or board of managers or other equivalent body) of Holdings, the Isle of Man Loan Party, each U.S. Loan Party and each English Loan Party (x) approving the terms of and the transactions contemplated by the Loan Documents to which it is a party and resolving that it execute the Loan Documents to which it is a party; (y) authorizing a specified person or persons to execute each Loan Document to which it is a party on its behalf; and (z) authorizing a specified person or persons on its behalf, to sign and/or dispatch all documents and notices (including any Committed Loan Notice, except in the case of Holdings) to be signed and/or dispatched by it under or in connection with the Loan Documents to which it is a party;
(9) a copy of a resolution of the shareholders of the Isle of Man Loan Party and each English Loan Party (other than the Parent), approving the terms of, and the transactions contemplated by the Loan Documents to which it is a party;
(10) certificates of customary resolutions or other customary action, incumbency certificates and/or other customary certificates of Responsible Officers of the Isle of Man Loan Party, each U.S. Loan Party, each English Loan Party and Holdings evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 or Holdings is a party;
party or is to be a party on the Closing Date (iv) copies including specimen signatures of each Loan Party’s certificate such Responsible Officer) and certifying (i) that the documents referred to in paragraphs (v) to (ix) above are true, correct and complete, and in full force and effect and have not been 121 amended or articles superseded since the date of incorporation this Agreement and bylaws (or equivalent or comparable constitutive documents ii) solely with respect to any non-U.S. jurisdictionEnglish Loan Party, that the borrowing, guaranteeing and/or securing, as appropriate, the Initial Dollar Term Loans would not cause any borrowing, guaranteeing, securing or similar limit binding on it to be exceeded;
(11) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available registered agent of the Isle of Man Loan Party in the applicable jurisdictionagreed form addressed to ▇▇▇▇▇▇▇ (Isle of Man) from such LLC and the Collateral Agent to be dated no earlier that the date this Agreement, together with a certified copy of the register of directors, members and charges of the Isle of Man Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v12) the following legal opinions: (A) a favorable customary legal opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to LLP in respect of the Domestic capacity and authority of each U.S. Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties Party and the enforceability of any Loan Documents; Document governed by New York law, (B) a customary legal opinion of Milbank LLP in respect of the capacity and authority of any English Loan Party and the enforceability of any Loan Document governed by English law, (yC) Fraser a customary legal opinion of ▇▇▇▇▇▇ Casgrain and ▇▇▇▇▇▇ (Cayman) LLP in respect of the capacity and authority of Holdings and (D) a customary legal opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP(Isle of Man) LLC in respect of the capacity and authority of the Isle of Man Loan Party;
(13) a certificate of a Responsible Officer of Parent certifying that the conditions set forth in Section 4.01(c) and 4.01(e) have been satisfied; and
(14) evidence that all actions, counsels recordings and filings of or with respect to the Canadian Loan Parties, addressed Closing Date Collateral Documents required in order to perfect and protect the Liens created thereby (subject to the Canadian Agent and each Canadian LenderPerfection Exceptions) shall have been taken, as to completed or otherwise provided for in a customary matters concerning manner.
(ii) The Borrower, the Canadian other U.S. Loan Parties and the Loan Documents;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the English Loan Parties on a consolidated basis are Solventshall have provided, and at least three (D3) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or Business Days prior to the Closing Date pursuant to Section 6.07 hereof.
(b) After giving effect to (i) or such shorter period as the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have receivedotherwise agree), (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money money-laundering rules and regulations including, without limitation, as has been reasonably requested in writing by each of the Patriot Act.
Administrative Agent and the Collateral Agent at least ten (l10) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred Business Days prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of Section 9.02, for purposes of determining compliance with the conditions specified in this Section 0, each Lender (other than an Agent or the Canadian Agent) 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. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(oiii) The representations and warranties of the Borrowers Holdings, Borrower and each other U.S. Loan Party and each English Loan Party contained in Article V or any other Loan Document, Document shall be true and correct in all material respects (or, in the case of provided that any representation and warranty that is qualified by as to “materiality”, in all respects) on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they “material adverse effect” or similar language shall be true and correct in all material respects as of (after giving effect to any such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (aqualification therein), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(piv) All fees required to be paid on the Closing Date pursuant to this Agreement, the Fee Letters and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to this Agreement, to the extent invoiced in reasonable detail at least five Business Days prior to the Closing Date (or such later date as the Borrower may agree) shall have been paid (which amounts may be offset against the proceeds of the Initial Dollar Term Loans).
(v) No Default or Event of Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or therefrom on the Canadian AgentClosing Date. Without limiting the generality of the provisions of Section 9.03, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance purposes of determining compliance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion conditions specified in this Section 4.01, each Lender as of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, Closing Date shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but Lender unless and until the Required Lenders otherwise direct the Administrative Agent and shall have received written notice from such Lender prior to the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to complyClosing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Coupang, Inc.)
Conditions Precedent to Credit Extensions. 4.01 Conditions of Initial Credit Extensionto the Closing Date. The Closing Date and the obligation of the each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject only to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and subject, in each case, to the terms of the last paragraph of this Section 4.01:
(i) executed counterparts of this Agreement, the Security Agreement and the Guaranty Agreement;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a NoteNotes;
(iii) searches of filings made under the UCC, or other applicable Law, in each case in the jurisdiction of formation of each Loan Party and each other jurisdiction reasonably deemed appropriate by the Administrative Agent;
(iv) such UCC financing statements or similar documents as are necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the Collateral in the United States;
(v) all certificates evidencing any certificated Equity Interests pledged to the Administrative Agent pursuant to the Security Agreements together with duly executed in blank, undated stock powers attached thereto;
(vi) searches of ownership of, and Liens on, United States intellectual property registrations and applications owned by each Loan Party in the appropriate United States governmental offices;
(vii) executed notices of grant of security interest in the form required by the Security Agreements as are necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the United States intellectual property registrations and applications of the Loan Parties;
(viii) updated customary certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing to replace the corresponding such certificates as of the Effective Date;
(Aix) the authority of customary evidence that each Loan Party to enter into this Agreement is validly existing and the other Loan Documents to which such Loan Party is a party and (B) the identity, authority and capacity in good standing in its jurisdiction 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 partyorganization or formation;
(iv) copies of each Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special customary opinions of counsel to the Domestic Loan Parties, Parties addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vixi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, Borrower certifying (A) that the conditions specified in Sections ARTICLE IV(o4.01(b), 4.01(f), 4.01(g) and (p4.01(h) have been satisfied, (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) a Solvency Certificate signed by the Intercreditor Agreementchief financial officer of the Borrower;
(xiii) a perfection certificate in the form attached hereto as Exhibit J and signed by a Responsible Office of the Borrower; and1
(xiv) copies of (A) a written report regarding for the results Borrower (1) GAAP audited consolidated balance sheets and related consolidated statements of a commercial finance examination income, stockholders’ equity and cash flows for the three most recent fiscal years ended at least 90 days prior to the Closing Date and (2) GAAP unaudited consolidated balance sheets and related consolidated statements of income, stockholders’ equity and cash flows for each subsequent fiscal quarter (the “Interim Financial Statements”) ended at least 45 days before the Closing Date (and the corresponding period in the prior year), in each case, which financial statements shall meet the requirements of Regulation S-X under the Securities Act of 1933, as amended (subject, in the case of unaudited interim financial statements, to normal year end audit adjustments), and all other accounting rules and regulations of the Loan PartiesSEC promulgated thereunder applicable to a registration statement under such Act on Form S-3, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks for the Company (1) GAAP (except as may be indicated therein or in the notes thereto) audited consolidated balance sheets and related consolidated statements of income, stockholders’ equity and cash flows for the three most recent fiscal years ended at least 90 days prior to the Closing Date and (2) GAAP (except as may be indicated therein or in the notes thereto and except as permitted by the SEC on Form 8-K, Form 10-Q or any successor or like form under the ParentSecurities Exchange Act of 1934, as amended (the Loan Parties “Exchange Act”)) unaudited consolidated balance sheets and their management reasonably requested by any Agentrelated consolidated statements of income, stockholders’ equity and cash flows for each subsequent fiscal quarter ended at least 45 days before the Closing Date (and the corresponding period in the prior year), in each case, which financial statements shall meet the requirements of Regulation S-X under the Securities Act of 1933, as amended (subject, in the case with results reasonably satisfactory of unaudited interim financial statements, to normal, recurring year end audit adjustments and except, in the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Partiesunaudited interim financial statements, except for Permitted Encumbrances as permitted by Rule 10-01 of Regulation S-X under the Exchange Act), and Liens for which termination all other accounting rules and regulations of the SEC promulgated thereunder applicable to a registration statement under such Act on Form S-3; provided, however that the filing of the required financial statements on Form 10-K or Form 10-Q within the time periods required thereby will satisfy the requirements under clauses (A) and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made(B) above; and
(xv) pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Borrower as of end of the most recent fiscal quarter period for which financial statements have been delivered pursuant to paragraph (Axiv)(A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documentsabove, and for the most recent fiscal year and each subsequent fiscal quarter period for which financial statements have been delivered pursuant to paragraph (Bxiv)(A) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior above, in each case prepared after giving effect to the Closing Date pursuant to Section 6.07 hereofTransactions 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 the income statement).
(b) After giving effect to (i) the first funding under the Loans (if any) on Substantially concurrently with the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Borrower’s Existing Credit Agreement on the Closing Dateshall have been repaid in full (other than contingent indemnification obligations for which no claim or demand has yet been made), and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course all commitments thereunder shall have been terminated. 1 NTD: To be deleted upon receipt of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000perfection certificate.
(c) The Administrative Agent and the Canadian Agent Lenders shall have received a Borrowing Base Certificate dated the Closing Date, relating at least three (3) Business Days prior to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations includingregulations, without limitationincluding the PATRIOT Act, to the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party extent requested by the Administrative Agent or any Credit Party shall have occurred such Lender in writing to the Borrower at least ten (10) Business Days prior to the Closing Date.
(md) intentionally omittedAt least three (3) Business Days prior to the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall have delivered to each Lender that so requests a Beneficial Ownership Certification in relation to the Borrower.
(ne) The Arrangers, the Administrative Agent and the Lenders shall have received all fees and invoiced expenses required to be paid on or prior to the Closing Date pursuant to the Fee Letters or hereunder concurrently with the initial Credit Extension hereunder; provided that if invoices for such expenses are not received at least two (2) Business Days prior to the Closing Date, then the payment thereof shall not be a condition to the Closing Date.
(f) The Finisar Acquisition shall be consummated substantially concurrently with the initial Credit Extension hereunder in accordance with the Merger Agreement in all material respects, and the Merger Agreement shall not have been amended or modified in any respect that is materially adverse to the Lenders or the Arrangers, without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), and no condition shall have occurred been waived or consent granted, in each case, in any respect that is materially adverse to the Lenders or the Arrangers, without each Arranger’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood and agreed that (i) any decrease in the purchase price of the Acquisition shall be deemed not materially adverse to the Lenders and the Arrangers to the extent such decrease is less than 15% of the initial purchase price and applied to reduce the Term Facilities on a dollar-for-dollar (and pro rata) basis, (ii) any increase in the purchase price of the Finisar Acquisition that is not funded with equity or before July 31cash on hand shall be deemed to be materially adverse to the Lenders and the Arrangers and (iii) any amendment, 2009modification, waiver or consent with respect to the definition of “Company Material Adverse Effect” in the Merger Agreement shall be deemed to be materially adverse to the Lenders and the Arrangers).
(g) Since November 8, 2018, there shall not have been any “Change” (as defined in the Merger Agreement as in effect on November 8, 2018) that, individually or in the aggregate has had or would reasonably be expected to have a Company Material Adverse Effect (as defined in the Merger Agreement as in effect on November 8, 2018) that is continuing.
(h) The Specified Merger Agreement Representations shall be true and correct in all material respects. The Specified Representations shall be true and correct in all material respects as of the Closing Date (except in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided that to the extent any representation and warranty is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such date.
(i) The Administrative Agent shall notify have received Schedules 1.01, 5.13, 5.21, 6.19, 7.01, 7.02, 7.03, 7.04, 7.05, 7.08, 7.09, 10.02 and 10.06 in form and substance reasonably satisfactory to the Lead Borrower Administrative Agent and the Lenders, provided that the Administrative Agent and Lenders agree that such schedules shall be deemed to be satisfactory if such updated Schedules (i) do not differ from the corresponding Schedules attached hereto as of the Closing Date, Effective Date in a manner that is material and adverse to the Lenders or (ii) are otherwise satisfactory to the Required Lenders (it being understood and agreed that any such notice items disclosed in the Borrower’s Form 10-K or 10-Q or the Company’s Form 10-K or 10-Q with the SEC prior to the Effective Date shall be conclusive and binding on deemed satisfactory to the Loan PartiesRequired Lenders).
(j) The Effective Date shall have occurred. Without limiting the generality of the provisions of the last paragraph of Section 9.029.03, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) It is understood and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit Extension, 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 as of such earlier date, and except agreed that for purposes of this Section 0the availability of the Facilities on the Closing Date, to the extent any security interest in the intended Collateral (other than any Collateral the security interest in which may be perfected by the filing of a UCC financing statement, the representations filing of short-form security agreements with the United States Patent and warranties contained Trademark Office or the United States Copyright Office or the delivery of stock certificates evidencing equity interests in subsections (a), x) the Borrower’s U.S. Subsidiaries (bother than the Company and the Company’s U.S. Subsidiaries) and (fy) the Company, and to the extent provided by the Company on the Closing Date after use of commercially reasonable efforts, any of the Company’s U.S. Subsidiaries) is not provided on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so, the provision of such perfected security interest(s) shall not constitute a condition precedent under this Section 5.01 4.01 but shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made delivered no later than ninety (90) after the Closing Date (or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are such later date agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed ) pursuant to arrangements to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to complymutually agreed.
Appears in 1 contract
Sources: Credit Agreement (Ii-Vi Inc)
Conditions Precedent to Credit Extensions. 4.01 Conditions of Initial Effectiveness of this Agreement [and Credit ExtensionExtension]on the Closing Date . The effectiveness of this Agreement[ and the obligation of the L/C Issuer and each Lender to make its initial any Credit Extension hereunder is hereunder] on the Closing Date [are]was subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or originals, telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” “via e-mail”) (followed promptly by originals) unless otherwise specified, 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 Agent:
(i) counterparts of this Agreement each properly executed by a Responsible Officer of the signing Loan Party (if applicable):
(i) executed counterparts of this Agreementand the Lenders sufficient in number for distribution to the Agent, each Lender and the Lead Borrower;
(ii) a Note executed by each applicable Borrower the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to become a party and (B) 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 become a party;
(iv) copies of each Loan Party’s certificate or articles of incorporation Organization Documents and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificatesdocuments and certifications as the Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, G▇▇▇▇▇▇▇▇ & T▇▇▇▇ ▇▇▇, LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary such matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsmay reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, Borrower certifying (A) that the conditions specified in Sections ARTICLE IV(o) 0 and (p) 0 have been satisfied, (B) that there has been no event or circumstance since the date of the Closing Date Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ixviii) a payoff letter from the agent Term Loan Agent for the lenders under the Existing Credit Agreement reasonably Term Loan Agreement, satisfactory in form and substance to the Agents Agent, evidencing that the Existing Credit Term Loan Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder have been or concurrently with the Closing Date are being paid in full (except to the extent expressly set forth therein)full, and all Liens securing obligations under the Existing Credit Term Loan Agreement have been, been or concurrently with the Closing Date are being, being released;
(xix) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement)thereunder, together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement)Parties;
(xix) all other Loan Documents set forth on Schedule 4.01(a)(xi) heretoDocuments, each duly executed by the applicable Loan Parties;
(xiixi) appraisal based on forced liquidation value by a third party appraiser acceptable to the Intercreditor AgreementAgent of all Eligible Trade Names of the Borrowers;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xivxii) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents Agent (in each case dated as of a date reasonably satisfactory to the Co-Collateral AgentsAgent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases satisfactory to the Agent are being tendered concurrently with the initial such extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made; and;
(xvxiii) (A) all UCC financing statements documents and PPSA instruments, including Uniform Commercial Code financing statements, required by Law law or reasonably requested by the Agents or the Canadian Agent, as applicable, Agent to be filed, registered or recorded to create, create or perfect or protect the first priority Liens intended to be created under the Loan DocumentsDocuments and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Agent, (B) the Credit Card Notifications, and Account Control Agreements required pursuant to Section 0 hereof shall have been obtained, and (BC) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior control agreements with respect to the Closing Date pursuant to Section 6.07 hereofLoan Parties’ securities and investment accounts have been obtained; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing DateLoans, (ii) the payment of all fees and other amounts due any charges to the Credit Parties by Loan Account made in connection with the Borrowers on the Closing Date as required under the Loan Documents, credit facility contemplated hereby and (iii) all Letters of Credit to be issued on at, or immediately subsequent to, the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000twenty-five percent (25%) of the Revolving Loan Cap.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30May 5, 20092018, and executed by a Responsible Officer of the Lead Borrower or the ParentBorrower.
(d) The Co-Collateral Agents Agent shall be reasonably satisfied with that any financial statements delivered to it and the results Lenders fairly present the business and financial condition of the inventory appraisal conducted by Great American Group dated April, 2009Loan Parties and that there has been no Material Adverse Effect since the date of the Closing Date Audited Financial Statements.
(e) The Administrative Agent and the Lenders shall have received, received and be satisfied with (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (iix) a detailed forecast financial projections and business assumptions on a quarterly basis for the one year period commencing with following the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010Closing Date, which shall include an Availability modelmodel (prepared on a twelve month basis), Americas Consolidated income statement, balance sheet, and statement of cash flow, by monthand (y) a detailed forecast on an annual basis for each of the three Fiscal Years thereafter, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow, in each case prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practicespractices and (ii) such other information (financial or otherwise) reasonably requested by the Agent.
(f) The Lead Borrower There shall not be pending any litigation or any Subsidiary shall other proceeding, the result of which, either individually or in the aggregate, could reasonably be expected to have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000Material Adverse Effect.
(g) The Agents There shall not have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies occurred any default of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agentsany Material Contract of any Loan Party.
(h) All necessary consents and approvals to The consummation of the transactions contemplated hereby shall have been obtainednot violate any Law or any Organization Document.
(i) All fees required to be paid by to the Borrowers to any of the Agents Agent or the Arrangers Arranger on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings Closing Date (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arrangerthe Agent).
(k) The Agents Upon the reasonable request of the Agent or any Lender made at least ten (10) days prior to the Closing Date, the Lead Borrower shall have received all provided to the Agent and such Lender the documentation and other information required by regulatory authorities under so requested in connection with applicable “know your customer”, Anti-Corruption Laws and Anti-Money Laundering, including the Act, in each case at least five (5) days prior to the Closing Date. At least five (5) days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” and anti-money laundering rules and regulations including, without limitation, under the Patriot ActBeneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower.
(l) Since June 8, 2009, no No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date There shall not have occurred on any disruption or before July 31material adverse change in the United States financial or capital markets in general that has had, 2009. The Administrative Agent shall notify in the Lead Borrower and the Lenders reasonable opinion of the Closing DateAgent, and such notice shall be conclusive and binding a material adverse effect on the Loan Partiesmarket for loan syndications or adversely affecting the syndication of the Loans. Without limiting the generality of the provisions of Section 9.020, for purposes of determining compliance with the conditions specified in this Section 0, each Lender (other than an Agent or the Canadian Agent) 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. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit Extension, 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 as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Conditions Precedent to Credit Extensions. Conditions 4. 01Conditions of Initial Credit Extensionthis Agreement on the Fourth Restatement Date . The obligation effectiveness of this Agreement on the L/C Issuer and each Lender to make its initial Credit Extension hereunder is Fourth Restatement Date was subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or originals, telecopies or other electronic image scan transmission (e.g., “pdf” or “tiftif ” via e-mail) (followed promptly by originals) unless otherwise specified, each dated the Fourth Restatement Date (or, in the case DB1/ 133985272.1133985272.4 of certificates of governmental officials, a recent date before the Fourth Restatement Date) and each in form and substance reasonably satisfactory to the Agent:
(i) counterparts of this Agreement each properly executed by a Responsible Officer of the signing Loan Party (if applicable):
(i) executed counterparts of this Agreementand the Lenders sufficient in number for distribution to the Agent, each Lender and the Lead Borrower;
(ii) a Note executed by each applicable Borrower the Borrowers in favor of each Revolving Loan Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to become a party and (B) 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 become a party;
(iv) copies of each Loan Party’s certificate or articles of incorporation Organization Documents and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificatesdocuments and certifications as the Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsels counsel to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary such matters concerning the Canadian Loan Parties and the Loan DocumentsDocuments as the Agent may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, Borrower certifying (A) that the conditions specified in Sections ARTICLE IV(o) 4.01 and (p) 4.02 have been satisfied, (B) that there has been no event or circumstance since the date of the Fourth Restatement Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; provided, however, none of the Material Adverse Effect Exceptions shall be deemed to be a Material Adverse Effect, (C) to the Solvency of the Loan Parties as of the Fourth Restatement Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(xviii) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement)thereunder, together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);Parties; DB1/ 133985272.1133985272.4
(xiix) all other Loan Documents set forth on Schedule 4.01(a)(xi4.01(a)(ix) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xivx) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents Agent (in each case dated as of a date reasonably satisfactory to the Co-Collateral AgentsAgent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases satisfactory to the Agent are being tendered concurrently with the initial such extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made; and;
(xv) (Axi) all UCC financing statements documents and PPSA instruments, including Uniform Commercial Code financing statements, required by Law law or reasonably requested by the Agents or the Canadian Agent, as applicable, Agent to be filed, registered or recorded to create, create or perfect or protect the first priority Liens intended to be created under the Loan Documents;
(xii) the items set forth in clauses (d) through (k) of the definition of Eligible Real Estate, and as applicable; and
(Bxiii) Credit Card Notifications and Blocked Account Agreements required to be delivered on such other assurances, certificates, documents, consents or prior to opinions as the Closing Date pursuant to Section 6.07 hereofAgent reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing DateLoans, (ii) the payment of all fees and other amounts due any charges to the Credit Parties by the Borrowers Loan Account on the Closing Fourth Restatement Date as required under by the Loan Documents, Documents and (iii) all Letters of Credit to be issued on at, or immediately subsequent to, the Closing Fourth Restatement Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Excess Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,00075,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Fourth Restatement Date, relating to the month ended on June 30February 28, 20092019, and executed by a Responsible Officer of the Lead Borrower or the ParentBorrower.
(d) The Co-Collateral Agents Agent shall be reasonably satisfied with the results that any financial statements of the inventory appraisal conducted by Great American Group dated AprilLoan Parties delivered to it and the Lenders fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the Fourth Restatement Audited Financial Statements, 2009it being understood that none of the Material Adverse Effect Exceptions shall be deemed to be violative of this clause (d).
(e) The Administrative Agent There shall have receivednot be any action, suit, investigation or proceeding (iother than as disclosed in Schedule 5.06 and any Material Adverse Effect Exception) and pending or, to the Agents shall be reasonably satisfied with a Consolidated balance sheet knowledge of executive officers of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30Borrowers, 2009threatened in any court or before any arbitrator or Governmental Authority, and in each case not previously disclosed to the related Consolidated statements of income or operationsAgent, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) that could reasonably be expected to have a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practicesMaterial Adverse Effect.
(f) The Lead Borrower Agent shall have received evidence reasonably satisfactory to it that no Loan Party or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise is in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension default in any material respect under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000any Material Contract.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies consummation of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtainednot violate any Law or any Organization Document.
(ih) All fees required to be paid by to the Borrowers to any of the Agents Agent or the Arrangers on or before the Closing Fourth Restatement Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Fourth Restatement Date shall have been paid in full.. DB1/ 133985272.1133985272.4
(ji) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Fourth Restatement Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(kj) The Agents At least ten (10) Business Days prior to the Fourth Restatement Date, the Agent and the Lenders shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” ”, beneficial ownership regulations, and anti-money laundering rules and regulations includingregulations, including without limitationlimitation the Act, and including satisfactory regulatory compliance review by the Patriot Agent and the Lenders in respect of the Flood Disaster Protection Act.
(k) Any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have provided, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of Section 9.02, for purposes of determining compliance with the conditions specified in this Section 0, each Lender (other than an Agent or the Canadian Agent) 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. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request and be satisfied with detailed financial projections and business assumptions for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit Extension, except to Guarantors on a monthly basis for 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 as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by period through the Lead Borrower or the Canadian Borrower’s Fiscal Year ending December 31, as applicable2020, shall be deemed to be including a representation consolidated income statement, balance sheet, statement of cash flow and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to complyborrowing base availability analysis.
Appears in 1 contract
Conditions Precedent to Credit Extensions. Conditions The effectiveness of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder this Agreement is subject to the satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) facsimiles (followed promptly by originals) or electronic copies (following promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party (Party, if applicable):any, each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement, duly executed by each Borrower, the Administrative Agent, the Required Lenders under and as defined in the DIP Credit Agreement and the Required Lenders under and as defined in the Prepetition Credit Agreement;
(ii) a Note executed by each applicable the relevant Borrower in favor of each Lender requesting that has requested a NoteNote at least two Business Days in advance of the Closing Date;
(iii) each Collateral Document set forth on Schedule 1.01A, duly executed by each Loan Party thereto, together with:
(1) certificates, if any, representing the Pledged Equity referred to therein, to the extent required therein, accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank; and
(2) evidence that all other actions, recordings and filings that the Administrative Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent;
(iv) the Intercreditor Agreement, duly executed by the Administrative Agent, the Second Lien Agent and each Loan Party party thereto;
(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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 partyparty or is to be a party on the Closing Date and with appropriate insertions and attachments, including the certificate of incorporation (or equivalent thereof) of each Loan Party that is a corporation certified by the relevant authority of the jurisdiction of organization of such Loan Party and a long form good standing certificate (or equivalent thereof) for each Loan Party from its jurisdiction of organization;
(ivvi) copies of each Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) opinion from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special New York counsel to Holdings substantially in the Domestic form of Exhibit F;
(vii) except as set forth in Section 6.16, evidence that all insurance (including title insurance) required to be maintained pursuant to the Loan PartiesDocuments has been obtained and is in effect and, addressed to where applicable, that the Administrative Agent and each Domestic Lenderhas been named as loss payee or additional insured, as appropriate, under each insurance policy with respect to customary matters concerning the Domestic Loan Parties such liability and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, property insurance as to customary matters concerning which the Canadian Loan Parties and the Loan Documents;Administrative Agent shall have reasonably requested to be so named; and
(viviii) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, Company certifying (A) that compliance with the conditions specified set forth in Sections ARTICLE IV(oparagraphs (k) and (pl) of Article IV.
(b) The Administrative Agent shall have been satisfied, received the results of recent lien searches (Bor the equivalent thereof in foreign jurisdictions) either that (1) no consents, licenses or approvals are required conducted in connection with the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to jurisdictions in which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date organized (to the extent required by the Pledge Agreementavailable), together with copies and such search shall reveal no liens on any of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, Parties except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder liens permitted by Section 7.01 or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered discharged on or prior to the Closing Date pursuant to Section 6.07 hereof.
(b) After giving effect documentation reasonably satisfactory to (i) the first funding under Administrative Agent or arrangements reasonably satisfactory to the Loans (if any) on Administrative Agent that have been made to have such liens discharged promptly following the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent Lenders and the Canadian Administrative Agent shall have received a Borrowing Base Certificate dated payment in full in cash of all costs, fees and expenses due and payable (including those required to be paid to such Lenders hereunder and under the DIP Credit Agreement and the Prepetition Credit Agreement) and invoiced before the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents Lenders shall be have received (i) the Audited Financial Statements and Unaudited Financial Statements (ii) the Pro Forma Balance Sheet and (iii) projections through June 30, 2014, in form reasonably satisfied with satisfactory to the results Administrative Agent, accompanied by a certificate of a Responsible Officer of the inventory appraisal conducted Company stating that such projections are based on estimates, information and assumptions believed by Great American Group dated Aprilmanagement of the Company to be reasonable on the Closing Date and that to his or her best knowledge, 2009such Responsible Officer (not in his or her individual capacity, but solely as a Responsible Officer) has no reason to believe that such projections are incorrect or misleading in any material respect (it being understood and agreed that the projections are subject to significant uncertainties and contingencies, many of which are beyond the control of the Responsible Officer and that no assurance can be given that any of the projections will be realized, and that such projections are not a guarantee of financial performance and actual results may differ from the projected results and such differences may be material).
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with received a Consolidated balance sheet certificate of a Responsible Officer of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30Company, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents Administrative Agent, certifying that (i) no Default or Event of Default (as defined in the DIP Credit Agreement) exists and received, or substantially simultaneously is continuing under the DIP Credit Agreement immediately prior to the termination thereof and (ii) the Company and its Subsidiaries are in compliance with the initial Credit Extension under this Agreement shall receive, gross proceeds financial covenants set forth in Sections 7.10 and 7.16 of the DIP Credit Agreement, immediately prior to the termination of the DIP Credit Agreement, in each case to the extent applicable.
(f) After giving pro forma effect to the Reorganization Plan, the conversion or continuation of the Loans, as applicable, and the borrowing of the Second Lien Loans, on the Closing Date (i) Liquidity of the Company and its Subsidiaries shall not be less than the minimum Liquidity required to be maintained pursuant to Section 7.10(c) of the DIP Credit Agreement as of the end of the last Business Day prior to the Closing Date, and (ii) the aggregate principal amount of the Loans and the Second Lien Term Loans shall not exceed $[ ], and the Company shall have provided to the Administrative Agent reasonably satisfactory support for such calculations, and the Administrative Agent shall have received a certificate of a Responsible Officer of the Company, in a minimum amount of $125,000,000form and substance reasonably satisfactory to the Administrative Agent, certifying compliance with the conditions set forth in this paragraph (f).
(g) The Agents Bankruptcy Court shall have received entered an order confirming the Reorganization Plan, which order (the “Confirmation Order”) (i) shall confirm a Reorganization Plan that is substantially consistent with the Intercreditor Agreement duly executed Restructuring Support Agreement, which Reorganization Plan has been accepted by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause Class 3 as designated thereunder, (ii) shall authorize the Facility and (iii) shall be substantially consistent with in full force and effect and not have been reversed, modified, amended, stayed or vacated and shall not be subject to a motion to stay or subject to appeal or petition for review, rehearing or certiorari, and the term sheet dated June 8, 2009 relating period for appealing the Confirmation Order shall have elapsed. The Effective Date shall have occurred (and all conditions precedent thereto as set forth in the Confirmation Order shall have been satisfied (or otherwise in form and substance reasonably acceptable to shall be concurrently satisfied) or waived by the AgentsRequired Lenders).
(h) All necessary consents and approvals to the transactions contemplated hereby The Restructuring Support Agreement shall have been obtainedin full force and effect from the execution thereof to the Effective Date.
(i) All fees required The Second Lien Term Loan Documents shall contain terms that conform to be paid by the Borrowers Restructuring Support Agreement and are otherwise reasonably satisfactory to any the Administrative Agent, and the Administrative Agent shall have received reasonably satisfactory evidence that the conditions to the effectiveness of the Agents or the Arrangers on or before the Closing Date Second Lien Term Loan Documents shall have been paid (or shall substantially concurrently be) satisfied or waived in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullaccordance with their terms.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Administrative Agent or Arranger).
(k) The Agents shall have received at least three days prior to the Closing Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations includingregulations, without limitation, including the Patriot Act, requested by such Person.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of Section 9.02, for purposes of determining compliance with the conditions specified in this Section 0, each Lender (other than an Agent or the Canadian Agent) 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. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(ok) The representations and warranties of the Borrowers Company and each other Loan Party contained in Article V or any other Loan Document, Document shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit ExtensionClosing Date; provided that, 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 as of such earlier date; provided, further that, any representation and except warranty that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) true and (d), respectively, of Section 0correct in all respects on such respective dates.
(pl) No Default shall exist, or would result from such proposed Credit Extension or from the application Event of the proceeds thereof.
(q) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender Default shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall occurred and be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to complycontinuing.
Appears in 1 contract
Sources: Credit Agreement
Conditions Precedent to Credit Extensions. 4.01 Conditions of to the Initial Credit ExtensionBorrowing on the Closing Date. The obligation obligations of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is are subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedentprecedent on the Closing Date:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or originals, telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) .pdfs (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Parties which are party thereto, each dated the Closing Date (if applicableor, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of this AgreementAgreement bearing the signatures of each of the Borrower, the Administrative Agent and each Lender with commitments to make Loans as designated on Schedule 2.01;
(ii) a an original Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer on behalf of such Loan Party in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) copies such documents and certifications as the Administrative Agent may reasonably require to evidence that each of each the Loan Party’s certificate or articles of incorporation and bylaws Parties (or equivalent or comparable constitutive documents other than San Diego Health Alliance with respect to any non-U.S. jurisdictiongood standing) is duly organized or formed, validly existing and a certificate in good standing in its jurisdiction of organization, including, certified copies of the Organization Documents of the Loan Parties, certificates of good standing (where applicable, or such other customary functionally equivalent certificates, to of the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse EffectParties;
(v) a favorable opinion opinions of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ Hogan Lovells US LLP, special counsel to the Domestic Loan Borrower and the Guarantors organized in Delaware, California, Massachusetts, Texas, Pennsylvania and Virginia, in each case, in form and substance reasonably satisfactory to the Administrative Agent and the Secured Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) copies of the financial statements referred to in Section 5.05(a) and a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying Borrower (A) certifying that the conditions specified in Sections ARTICLE IV(o4.02(a) and (pb) have been satisfied, satisfied and (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect certifying to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, condition set forth in clauses (e) and (Df) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenturebelow;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, insurance certificates or other evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in full force, including in either case evidence that the Administrative Agent, on behalf of the Lenders, is an additional insured or lender’s loss payee, as the case may be, under all endorsements insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral;
(viii) all original certificates evidencing all of the issued and outstanding shares of capital stock or other Equity Interest required to be pledged pursuant to the terms of the Security Agreement, which certificates shall be accompanied by undated stock powers duly executed in blank by each relevant pledgor in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form all notes and substance instruments required to be pledged pursuant to the Agents evidencing that terms of the Existing Credit Agreement has been or concurrently with Security Agreement, duly endorsed in blank by each relevant pledgor in favor of the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, releasedAdministrative Agent;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and certified copies of certificates evidencing any stock being pledged under Uniform Commercial Code Requests for Information or Copies (Form UCC-11) or similar search reports certified by a party acceptable to the Pledge Agreement on Administrative Agent, dated a date reasonably near (but prior to) the Closing Date (to Date, listing all effective UCC financing statements, tax liens and judgment liens since the extent required by date of such searches in connection with the Pledge Agreement)Existing Credit Agreement which name any Loan Party, as the debtor, together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties such financing statements (originals none of which are being delivered (other than financing statements filed pursuant to the US Term Loan Agent subject to terms hereof in favor of the Intercreditor AgreementAdministrative Agent) shall cover any of the Collateral, other than Liens existing on the Closing Date and permitted by Section7.01);
(xi) all acknowledgment copies of UCC financing statements (or delivery in proper form for filing) naming the Borrower and each other Loan Documents set forth on Schedule 4.01(a)(xi) heretoParty as the debtor and the Administrative Agent as the secured party, each duly executed by which such UCC financing statements have been filed, or have been delivered for filing, under the applicable Loan PartiesUCC of all jurisdictions as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the first priority security interest of the Administrative Agent pursuant to the Security Agreement;
(xii) evidence that all other action that the Intercreditor Agreement;
Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents has been taken (A) a written report regarding the results including, without limitation, receipt of a commercial finance examination of the Loan Partiesduly executed payoff letters, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which UCC-3 termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been madestatements); and
(xvxiii) (A) all UCC financing statements such other assurances, certificates, documents, consents and PPSA financing statementswaivers, required by Law estoppel certificates, or reasonably requested by opinions as the Agents Administrative Agent, the L/C Issuer, the Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have receivedreceived certification, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and receivedAdministrative Agent, or substantially simultaneously with as to the initial Credit Extension under this Agreement shall receive, gross proceeds solvency (as described in Section 5.24) of the Term Loans in Borrower, individually, and the Loan Parties, taken as a minimum amount whole from the chief financial officer of $125,000,000the Borrower.
(gc) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto Any fees and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees expenses required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid paid, including those fees and expenses set forth in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullEngagement Letter.
(jd) The Borrowers Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents Administrative Agent and the Arrangers to the extent payable by the Borrowers hereunder and invoiced at least three Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by of counsel to the Borrowers hereunder Administrative Agent and the Arrangers as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements of counsel to the Administrative Agent incurred or to be incurred by it through the closing proceedings to the extent invoiced at least three Business Days prior to or on the Closing Date (provided provided, that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or Arranger)the Administrative Agent) .
(ke) Since December 31, 2020, no changes or developments shall have occurred that either individually or in the aggregate constitutes or has had or could reasonably be expected to constitute or have a Material Adverse Effect.
(f) The Agents representations and warranties of the Borrower and each other Loan Party contained in ARTICLE V or any other Loan Document shall be true and correct in all material respects (or, if any such representation or warranty is by its terms qualified by concepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects), 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 (or, if any such representation or warranty is by its terms qualified by concepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects) as of such earlier date.
(g) Prior to, or substantially concurrently with, the borrowing of the Loans on the Closing Date, the Borrower shall have received (i) repaid all outstanding principal, together with all accrued and unpaid interest, in respect of Indebtedness under and as defined in the Existing Credit Agreement and permanently terminated all commitments thereunder and (ii) redeemed in full all of the Borrower’s Existing Notes.
(h) Upon the reasonable request of any Lender made at least 5 days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information required by regulatory authorities under so requested in connection with applicable “know your customer” and anti-money money-laundering rules and regulations regulations, including, without limitation, the Patriot PATRIOT Act.
, in each case at least 2 days prior to the Closing Date and (ly) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred at least 5 days prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date , any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have occurred on or before July 31delivered, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Dateto each Lender that so requests, and a Beneficial Ownership Certification in relation to such notice shall be conclusive and binding on the Loan PartiesParty. Without limiting the generality of the provisions of Section 9.029.04, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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. .
4.02 Conditions to all Credit Extensions. The Other than as may be expressly set forth in Section 2.16 in connection with the establishment of any Incremental Facilities, the obligation of each Lender and the L/C Issuer to honor any Request for Credit Extension (other than a Committed Loan Notice Request for Credit Extension requesting only a conversion of a Committed Loan Loans to another Type of Committed Loanthe other Type, or a continuation of LIBO Rate Loans or BA Equivalent Eurodollar RateTerm SOFR Loans, but including, for the avoidance of doubt, any Request for Credit Extension requesting a Borrowing on the Closing Date) and of each L/C Issuer to issue each Letter of Credit is subject to the satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent:
(oa) The representations and warranties of the Borrowers Borrower and each other Loan Party contained in Article V or any other Loan Document, Document shall be true and correct in all material respects (or, in the case of if any such representation and or warranty is by its terms qualified by materialityconcepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects) on and as of the date of such Credit Extension, (i) 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 (or, if any such representation or warranty is by its terms qualified by concepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects) as of such earlier datedate and (ii) except that, and except that for -100- purposes of this Section 04.02, the representations and warranties contained in subsections subsection (a), (b) and (f) of Section 5.01 5.05 shall be deemed to refer to the most recent statements, if any, statements furnished pursuant to clauses subsections (a), (b) and (db), respectively, of Section 06.01.
(pb) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(qc) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan Loans to another the other Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Eurodollar RateTerm SOFR Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o4.02(a) and (p4.02(b) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Conditions Precedent to Credit Extensions. Section 4.01 Conditions of to the Initial Credit ExtensionExtension on the Closing Date. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder on the Closing Date is subject to satisfaction or due waiver in accordance with Section 10.01 of each of the following conditions precedent, except as otherwise agreed between the Parent Borrower and the Administrative Agent:
(a) The Administrative Agent’s receipt Agent shall have received all of the following, each of which shall be originals or telecopies facsimiles or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) files (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party (if applicable):
(i) executed counterparts of this Agreement;
(ii) a Note executed by Party, each applicable Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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;
(iv) copies of each Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, dated as of the Closing Date after giving effect to the transactions contemplated hereby(or, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (icertificates of governmental officials, as of a recent date before the Closing Date)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise each in form and substance reasonably satisfactory to the Agents Administrative Agent, and receivedeach accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to Holdings and its Subsidiaries, or substantially simultaneously with giving effect to the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received Transactions): (i) executed counterparts of (A) this Agreement from Holdings and the Intercreditor Agreement Borrowers, (B) the Holdings Guaranty from Holdings, (C) the Subsidiary Guaranty from each Subsidiary Guarantor and (D) the Intercompany Subordination Agreement; (ii) a customary perfection certificate, duly executed by all parties thereto the Loan Parties; (iii) the Security Agreement, duly executed by Holdings, the Borrowers and each Subsidiary Guarantor, together with (iisubject to the last paragraph of this Section 4.01):
(1) certificates, if any, representing the Pledged Interests in each Borrower and each wholly owned Domestic Subsidiary other than Immaterial Subsidiaries, accompanied by undated stock powers executed in blank (or stock transfer forms, as applicable) and instruments evidencing the Pledged Debt indorsed in blank (or instrument of transfer, as applicable) shall have been delivered to the Collateral Agent following pay- off of the Existing Credit Agreements, (2) copies of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all material documents United States jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and agreements duly executed by protect the Liens on assets of Holdings, each Borrower and each Subsidiary Guarantor created under the Security Agreement, covering the Collateral described in the Security Agreement, and (3) evidence that all parties thereto other actions, recordings and filings of or with respect to the Term Loans Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and such agreements described in this clause protect the Liens created thereby (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable subject to the Agents.
(hPerfection Exceptions) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (iincluding receipt of duly executed payoff letters, customary lien searches and UCC-3 termination statements); (iv) All fees an Intellectual Property Security Agreement, duly executed by each Loan Party that owns intellectual property that is required to be paid pledged in accordance with the Security Agreement; (v) a Note executed by the Borrowers to any in favor of the Agents or the Arrangers on or before the Closing Date shall have been paid each Lender requesting a Note reasonably in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders advance of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of Section 9.02, for purposes of determining compliance with the conditions specified in this Section 0, each Lender (other than an Agent or the Canadian Agent) 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. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit Extension, 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 as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.;
Appears in 1 contract
Sources: Credit Agreement (Maravai Lifesciences Holdings, Inc.)
Conditions Precedent to Credit Extensions. Conditions of Initial Credit ExtensionExtension . The effectiveness of this Agreement and the obligation of the each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mailmails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):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 this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note executed by each applicable the Borrower in favor of each Revolving Credit Lender requesting a Revolving Credit Note, a Term A-1 Note executed by the Borrower in favor of each Term A-1 Lender requesting a Term A-1 Note and a Term A-2 Note executed by the Borrower in favor of each Term A-2 Lender requesting a Term A-2 Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing and qualified to engage in business in (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdictionA) from such Loan Party’s its jurisdiction of organization and from (B) each jurisdiction where such Loan Party’s 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ McGuireWoods LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary the matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsmay reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying Borrower either (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since December 31, 2017 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have a Material Adverse Effect;
(viii) a Solvency Certificate from the Borrower certifying that, as of the Closing Date after giving effect to the transactions contemplated herebyto occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), each Loan Parties Party is, individually and together with its Subsidiaries on a consolidated basis are basis, Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance duly completed Compliance Certificate, giving pro forma effect to the Agents evidencing that the Existing Credit Agreement has been or concurrently with transactions to occur on the Closing Date is being terminated(including, without limitation, all obligations thereunder are being paid in full (except Credit Extensions to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with occur on the Closing Date) (such Compliance Certificate, the “Pro Forma Closing Date are being, releasedCompliance Certificate”);
(x) the Security Documents set forth on Schedule 4.01(a)(xfinancial statements referenced in Section 5.05(a) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreementb), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);; and
(xi) all such other Loan Documents set forth on Schedule 4.01(a)(xi) heretoassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the ParentAdministrative Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuers, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding Any fees required hereunder or under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required Fee Letter to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Upon the reasonable request of any Lender made at least ten days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the U.S. Patriot Act, in each case at least five days prior to the Closing Date.
(d) At least five days prior to the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation it shall deliver to each Lender that so requests, in a form acceptable to such Lender, a Beneficial Ownership Certification in relation to the Borrower.
(e) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced (which invoice may be in summary form) prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.029.03, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto. Notwithstanding anything contained elsewhere in this Agreement, each Lender that is a “Lender” (as defined in the Existing Credit Agreement) hereby waives any right to indemnification for any funding loss or expense that such Lender may sustain or incur as a result of a prepayment by the Borrower of any Loans outstanding under the Existing Credit Agreement on the Closing Date prior to the last day of the “Interest Period” (as defined in the Existing Credit Agreement) applicable thereto that is required to effect the refinancing of loans under the Existing Credit Agreement with Loans made under this Agreement or as a result of the allocation of any Loans to Lenders that were not “Lenders” under the Existing Credit Agreement. Conditions to all Credit ExtensionsExtensions . The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan Loans to another Type of Committed Loanthe other Type, or a continuation of LIBO Eurodollar Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(of) The representations and warranties of the Borrowers Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materialitySection 5.19, in all respects) on and as of the date of such Credit Extension, except (i) 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 as of such earlier date, (ii) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and except correct in all respects as of such date (including such earlier date set forth in the foregoing clause (i)) after giving effect to such qualification and (iii) that for purposes of this Section 04.02, the representations and warranties contained in subsections (a), ) and (b) and (f) of Section 5.01 5.05 shall be deemed to refer to the most recent statements, if any, statements furnished pursuant to clauses subsections (a), (b) and (db), respectively, of Section 06.01.
(pg) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(qh) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the an L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan Loans to another the other Type of Committed Loan or a continuation of LIBO Eurodollar Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o4.02(a) and (pb) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Conditions Precedent to Credit Extensions. 4.01 Conditions of to the Initial Credit ExtensionBorrowing on the Closing Date. The obligation obligations of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is are subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedentprecedent on the Closing Date:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or originals, telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) .pdfs (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Parties which are party thereto, each dated the Closing Date (if applicableor, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of this AgreementAgreement bearing the signatures of each of the Borrower, the Administrative Agent and each Lender with commitments to make Loans as designated on Schedule 2.01;
(ii) a an original Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer on behalf of such Loan Party in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) copies such documents and certifications as the Administrative Agent may reasonably require to evidence that each of each the Loan Party’s certificate or articles of incorporation and bylaws Parties (or equivalent or comparable constitutive documents other than San Diego Health Alliance with respect to any non-U.S. jurisdictiongood standing) is duly organized or formed, validly existing and a certificate in good standing in its jurisdiction of organization, including, certified copies of the Organization Documents of the Loan Parties, certificates of good standing (where applicable, or such other customary functionally equivalent certificates, to of the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse EffectParties;
(v) a favorable opinion opinions of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ US LLP, counsels counsel to the Canadian Loan Borrower and the Guarantors organized in Delaware, California, Massachusetts, Texas, Pennsylvania and Virginia, in each case, in form and substance reasonably satisfactory to the Administrative Agent and the Secured Parties, addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) copies of the financial statements referred to in Section 5.05(a) and a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying Borrower (A) certifying that the conditions specified in Sections ARTICLE IV(o4.02(a) and (pb) have been satisfied, satisfied and (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect certifying to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, condition set forth in clauses (e) and (Df) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenturebelow;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, insurance certificates or other evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in full force, including in either case evidence that the Administrative Agent, on behalf of the Lenders, is an additional insured or lender’s loss payee, as the case may be, under all endorsements insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral;
(viii) all original certificates evidencing all of the issued and outstanding shares of capital stock or other Equity Interest required to be pledged pursuant to the terms of the Security Agreement, which certificates shall be accompanied by undated stock powers duly executed in blank by each relevant pledgor in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form all notes and substance instruments required to be pledged pursuant to the Agents evidencing that terms of the Existing Credit Agreement has been or concurrently with Security Agreement, duly endorsed in blank by each relevant pledgor in favor of the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, releasedAdministrative Agent;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and certified copies of certificates evidencing any stock being pledged under Uniform Commercial Code Requests for Information or Copies (Form UCC-11) or similar search reports certified by a party acceptable to the Pledge Agreement on Administrative Agent, dated a date reasonably near (but prior to) the Closing Date (to Date, listing all effective UCC financing statements, tax liens and judgment liens since the extent required by date of such searches in connection with the Pledge Agreement)Existing Credit Agreement which name any Loan Party, as the debtor, together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties such financing statements (originals none of which are being delivered (other than financing statements filed pursuant to the US Term Loan Agent subject to terms hereof in favor of the Intercreditor AgreementAdministrative Agent) shall cover any of the Collateral, other than Liens existing on the Closing Date and permitted by Section7.01);
(xi) all acknowledgment copies of UCC financing statements (or delivery in proper form for filing) naming the Borrower and each other Loan Documents set forth on Schedule 4.01(a)(xi) heretoParty as the debtor and the Administrative Agent as the secured party, each duly executed by which such UCC financing statements have been filed, or have been delivered for filing, under the applicable Loan PartiesUCC of all jurisdictions as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the first priority security interest of the Administrative Agent pursuant to the Security Agreement;
(xii) evidence that all other action that the Intercreditor Agreement;
Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents has been taken (A) a written report regarding the results including, without limitation, receipt of a commercial finance examination of the Loan Partiesduly executed payoff letters, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which UCC-3 termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been madestatements); and
(xvxiii) (A) all UCC financing statements such other assurances, certificates, documents, consents and PPSA financing statementswaivers, required by Law estoppel certificates, or reasonably requested by opinions as the Agents Administrative Agent, the L/C Issuer, the Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have receivedreceived certification, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and receivedAdministrative Agent, or substantially simultaneously with as to the initial Credit Extension under this Agreement shall receive, gross proceeds solvency (as described in Section 5.24) of the Term Loans in Borrower, individually, and the Loan Parties, taken as a minimum amount whole from the chief financial officer of $125,000,000the Borrower.
(gc) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto Any fees and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees expenses required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid paid, including those fees and expenses set forth in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullEngagement Letter.
(jd) The Borrowers Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents Administrative Agent and the Arrangers to the extent payable by the Borrowers hereunder and invoiced at least three Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by of counsel to the Borrowers hereunder Administrative Agent and the Arrangers as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements of counsel to the Administrative Agent incurred or to be incurred by it through the closing proceedings to the extent invoiced at least three Business Days prior to or on the Closing Date (provided provided, that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or Arranger)the Administrative Agent) .
(ke) Since December 31, 2020, no changes or developments shall have occurred that either individually or in the aggregate constitutes or has had or could reasonably be expected to constitute or have a Material Adverse Effect.
(f) The Agents representations and warranties of the Borrower and each other Loan Party contained in ARTICLE V or any other Loan Document shall be true and correct in all material respects (or, if any such representation or warranty is by its terms qualified by concepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects), 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 (or, if any such representation or warranty is by its terms qualified by concepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects) as of such earlier date.
(g) Prior to, or substantially concurrently with, the borrowing of the Loans on the Closing Date, the Borrower shall have received (i) repaid all outstanding principal, together with all accrued and unpaid interest, in respect of Indebtedness under and as defined in the Existing Credit Agreement and permanently terminated all commitments thereunder and (ii) redeemed in full all of the Borrower’s Existing Notes.
(h) Upon the reasonable request of any Lender made at least 5 days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information required by regulatory authorities under so requested in connection with applicable “know your customer” and anti-money money-laundering rules and regulations regulations, including, without limitation, the Patriot PATRIOT Act.
, in each case at least 2 days prior to the Closing Date and (ly) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred at least 5 days prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date , any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have occurred on or before July 31delivered, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Dateto each Lender that so requests, and a Beneficial Ownership Certification in relation to such notice shall be conclusive and binding on the Loan PartiesParty. Without limiting the generality of the provisions of Section 9.029.04, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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. .
4.02 Conditions to all Credit Extensions. The Other than as may be expressly set forth in Section 2.16 in connection with the establishment of any Incremental Facilities, the obligation of each Lender and the L/C Issuer to honor any Request for Credit Extension (other than a Committed Loan Notice Request for Credit Extension requesting only a conversion of a Committed Loan Loans to another Type of Committed Loanthe other Type, or a continuation of LIBO Rate Loans or BA Equivalent Term SOFR Loans, but including, for the avoidance of doubt, any Request for Credit Extension requesting a Borrowing on the Closing Date) and of each L/C Issuer to issue each Letter of Credit is subject to the satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent:
(oa) The representations and warranties of the Borrowers Borrower and each other Loan Party contained in Article V or any other Loan Document, Document shall be true and correct in all material respects (or, in the case of if any such representation and or warranty is by its terms qualified by materialityconcepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects) on and as of the date of such Credit Extension, (i) 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 (or, if any such representation or warranty is by its terms qualified by concepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects) as of such earlier datedate and (ii) except that, and except that for purposes of this Section 04.02, the representations and warranties contained in subsections subsection (a), (b) and (f) of Section 5.01 5.05 shall be deemed to refer to the most recent statements, if any, statements furnished pursuant to clauses subsections (a), (b) and (db), respectively, of Section 06.01.
(pb) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(qc) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan Loans to another the other Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Term SOFR Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o4.02(a) and (p4.02(b) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Conditions Precedent to Credit Extensions. 4.01 Conditions of to the Initial Credit ExtensionBorrowing on the Closing Date. The obligation obligations of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is are subject to satisfaction (or waiver by the Administrative Agent) of the following conditions precedentprecedent on the Closing Date:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Parties which are party thereto, each dated the Closing Date (if applicableor, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of (x) this Agreement bearing the signatures of each of the Borrower, the Administrative Agent and each Lender with commitments to make Loans as designated on Schedule 2.01 and (y) the Restatement Agreement bearing the signatures of each of the Borrower, the Administrative Agent and each of the lenders under the Existing Credit Agreement party thereto, which shall together constitute the “Required Lenders” (under and as defined in the Existing Credit Agreement);
(ii) a executed counterparts of the Ratification Agreement;
(iii) an original Note executed by each applicable the Borrower in favor of each new Lender requesting a Note;
(iiiiv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer on behalf of such Loan Party in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(ivv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each of the Loan Parties is duly organized or formed, validly existing and in good standing in its jurisdiction of organization, including, certified copies of each the Organization Documents of the Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate Parties, certificates of good standing (where applicable, or such other customary functionally equivalent certificates, to of the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse EffectParties;
(vvi) a favorable opinion of (x) Skadden, Arps, Slate, S▇▇▇▇▇▇▇ & C▇▇▇▇▇▇▇ LLP, special counsel LLP in form and substance reasonably satisfactory to the Domestic Loan Administrative Agent and the Secured Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vivii) copies of the financial statements referred to in Sections 5.05(a) and 5.05(b) (to the extent not previously delivered under the Existing Credit Agreement) and a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying Borrower (A) certifying that the conditions specified in Sections ARTICLE IV(o4.02(a) and (pb) have been satisfied, (B) certifying that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either that individually or in the aggregate, a Material Adverse Effect, and (1C) no (x) attaching copies of all consents, licenses or and approvals are of Governmental Authorities, shareholders and other Persons required in connection with the execution, delivery and performance by any each Loan Party and the validity against such each Loan Party of the Loan Documents to which it is a partyparty and required in connection with the Loan Documents and the transactions contemplated thereby (including, or (2) that without limitation, the expiration, without imposition of conditions, of all applicable waiting periods in connection with the transactions contemplated by the Loan Documents), and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (Cy) thatstating that no such consents, as licenses or approvals are so required since the closing of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omittedExisting Credit Agreement;
(viii) except as set forth in existing insurance certificates previously delivered to the post-Closing Letter, Administrative Agent or other evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in full force, including in either case evidence that the Administrative Agent, on behalf of the Lenders, is an additional insured or lender’s loss payee, as the case may be, under all endorsements insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral;
(ix) to the extent not held by the Administrative Agent prior to the Closing Date or set forth on Schedule 6.13, all original certificates evidencing all of the issued and outstanding shares of capital stock or other Equity Interest required to be pledged pursuant to the terms of the Pledge Agreement, which certificates shall be accompanied by undated stock powers duly executed in blank by each relevant pledgor in favor of the Administrative Agent.
(x) to the extent not held by the Administrative Agent or prior to the Canadian Closing Date, the original Intercompany Notes and all other notes and instruments required to be pledged pursuant to the terms of the Pledge Agreement, duly endorsed in blank by each relevant pledgor in favor of the Administrative Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ixxi) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11) or similar search reports certified by a payoff letter from party acceptable to the agent for Administrative Agent, dated a date reasonably near (but prior to) the lenders under Closing Date, listing all effective UCC financing statements, tax liens and judgment liens since the date of such searches in connection with the Existing Credit Agreement reasonably satisfactory in form and substance to which name any Loan Party, as the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement)debtor, together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties such financing statements (originals none of which are being delivered (other than financing statements filed pursuant to the US Term Loan Agent subject to terms hereof in favor of the Intercreditor AgreementAdministrative Agent) shall cover any of the Collateral, other than Liens existing on the Closing Date and permitted by Section 7.01(b);
, (xic) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Partiesor (j));
(xii) acknowledgment copies of UCC financing statements (or delivery in proper form for filing) naming the Intercreditor Borrower and each other Loan Party as the debtor and the Administrative Agent as the secured party, which such UCC financing statements have been filed, or have been delivered for filing, under the UCC of all jurisdictions as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the first priority security interest of the Administrative Agent pursuant to the Security Agreement and the Pledge Agreement;
(Axiii) a written report regarding evidence that all other action that the results Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents has been taken (including, without limitation, receipt of a commercial finance examination of the Loan Partiesduly executed payoff letters, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;UCC-3 termination statements); and
(xiv) results of searches such other assurances, certificates, documents, consents and waivers, estoppel certificates, or other evidence reasonably satisfactory to opinions as the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to Administrative Agent, the Co-Collateral Agents) indicating L/C Issuer, the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing DateSuch financial, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability legal due diligence and information regarding the Borrower and its Subsidiaries as the Administrative Agent and its legal counsel shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000have requested.
(c) The Administrative Agent Engagement Letter and each Fee Letter shall be in full force and effect and the Canadian Agent Borrower and each of the Loan Parties shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer complied with all of the Lead Borrower or the Parenttheir respective obligations thereunder.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have receivedreceived certification, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents Administrative Agent, as to the financial condition and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds solvency (as described in Section 5.24) of the Term Loans in Borrower, individually, and the Loan Parties, taken as a minimum amount whole from the chief financial officer of $125,000,000the Borrower.
(ge) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto Any fees and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees expenses required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid paid, including those fees and expenses set forth in full, the Engagement Letter and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fulleach Fee Letter.
(jf) The Borrowers Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents Administrative Agent and the Arrangers to the extent payable by the Borrowers hereunder and invoiced at least three Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by of counsel to the Borrowers hereunder Administrative Agent and the Arrangers as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements of counsel to the Administrative Agent incurred or to be incurred by it through the closing proceedings to the extent invoiced at least three Business Days prior to or on the Closing Date (provided provided, that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or Arrangerthe Administrative Agent).
(kg) Since December 31, 2018, no changes or developments shall have occurred that either individually or in the aggregate constitutes or has had or could reasonably be expected to constitute or have a Material Adverse Effect.
(h) The Agents representations and warranties of the Borrower and each other Loan Party contained in ARTICLE V or any other Loan Document shall be true and correct in all material respects (or, if any such representation or warranty is by its terms qualified by concepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects), 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 (or, if any such representation or warranty is by its terms qualified by concepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects) as of such earlier date.
(i) Prior to, or substantially concurrently with, the borrowing of the Loans on the Closing Date, the Borrower shall have received repaid (i) all outstanding principal, together with all accrued and unpaid interest, in respect of the Term Loans (under and as defined in the Existing Credit Agreement), and (ii) all accrued and unpaid interest. commitment and letter of credit fees in respect of the Revolving Credit Loans (under and as defined in the Existing Credit Agreement) and Letters of Credit (under and as defined in the Existing Credit Agreement).
(j) Upon the reasonable request of any Lender made at least 10 days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information required by regulatory authorities under so requested in connection with applicable “know your customer” and anti-money money-laundering rules and regulations regulations, including, without limitation, the Patriot PATRIOT Act.
, in each case at least 3 days prior to the Closing Date and (ly) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred at least 5 days prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date , any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have occurred on or before July 31delivered, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Dateto each Lender that so requests, and a Beneficial Ownership Certification in relation to such notice shall be conclusive and binding on the Loan PartiesParty. Without limiting the generality of the provisions of Section 9.029.04, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit Extension, 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 as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Sources: Credit Agreement (Integra Lifesciences Holdings Corp)
Conditions Precedent to Credit Extensions. Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):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 this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such executed counterparts of the Security Agreement, duly executed by the Borrower, together with:
(A) copies of (1) Uniform Commercial Code financing statement amendments in proper form for filing with the office of the District of Columbia Recorder of Deeds and the California Secretary of State and (2) the relevant form(s) as applicable for filing with the Registrar of Companies of Bermuda in proper form for filing with the Registrar of Companies of Bermuda, each covering the Collateral described in the Security Agreement,
(B) results of lien searches for filings in the jurisdictions referred to in Section 4.01(a)(iii)(A) that name the Borrower as debtor, and
(C) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements);
(iv) the Pledge Agreement, duly executed by Guarantor, together with the original share certificates evidencing all of the shares of the Borrower owned by the Guarantor, and corresponding share transfer forms duly executed in blank;
(v) certified copies of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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;
(ivvi) copies such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly incorporated and in good standing in Bermuda, including without limitation certificates of compliance issued by the Registrar of Companies of Bermuda for each Loan Party’s certificate or articles , dated a date close to the date of incorporation this Agreement, stating that each Loan Party is duly incorporated and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of in good standing (where applicable, or such other customary functionally equivalent certificates, to under the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, Companies ▇▇▇▇ ▇▇▇▇ & of Bermuda;
(vii) favorable opinions of (1) ▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y2) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇ LLPLimited, counsels special Bermuda counsel to the Canadian Loan Parties, and (3) appropriate local counsel to the Loan Parties, in each case addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary the matters set forth in Exhibit F and such other matters concerning the Canadian Loan Parties and the Loan DocumentsDocuments as the Required Lenders may reasonably request;
(viviii) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, licenses or approvals are so required;
(ix) a certificate signed by a Responsible Officer of the Borrower and the Guarantor certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(x) a duly completed Compliance Certificate as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 last day of the Senior Note Indenturerespective fiscal quarters of the Borrower and the Guarantor ended on June 30, 2018, signed by Responsible Officers of the Borrower and the Guarantor;
(viixi) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained, is in effect and contains endorsements naming the Administrative Agent, on behalf of the Lenders, as a joint assured and/or co-loss payee, as the case may be, under such insurance;
(xii) evidence that all endorsements in favor of filings, recordations and searches necessary or desirable to perfect the Lien on any property granted to or held by the Administrative Agent or the Canadian Agent, as applicable, required under the any Loan Documents Document shall have been obtained completed, and are in effectthat all related filing and recording fees and taxes shall have been duly paid;
(ixxiii) a payoff letter from Borrowing Base Certificate duly certified by a Responsible Officer of the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance Borrower relating to the Agents evidencing initial Credit Extension;
(xiv) evidence that the Existing ABN Revolving Credit Agreement has been Facility and Union Bank Term Loan Facility have been, or concurrently with the Closing Date is such Credit Extension are being terminated, all obligations thereunder amounts owing by the Borrower under the ABN Revolving Credit Facility and Union Bank Term Loan Facility shall have been, or concurrently with such Credit Extension are being paid in full (except to the extent expressly set forth therein)being, repaid, and all Liens securing obligations under the Existing ABN Revolving Credit Agreement Facility and Union Bank Term Loan Facility have been, or concurrently with the Closing Date such Credit Extension are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches released or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been madeassigned; and
(xv) (A) all UCC financing statements and PPSA financing statementssuch other assurances, required by Law certificates, documents, consents or reasonably requested by opinions as the Agents Administrative Agent, the L/C Issuer or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be Required Lenders reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtainedmay require.
(i) All fees required to be paid by to the Borrowers to any of the Agents or Administrative Agent and the Arrangers on or before the Closing Date shall have been paid in full, and (ii) all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or Arrangerthe Administrative Agent).
(kd) The Agents Administrative Agent shall have completed a due diligence investigation of the Guarantor, the Borrower and their respective Subsidiaries in scope, and with results, satisfactory to the Administrative Agent and shall have been given such access to the management, records, books of account, contracts and properties of the Guarantor, the Borrower and their respective Subsidiaries and shall have received all documentation such financial, business and other information required by regulatory authorities under applicable “know your customer” regarding each of the foregoing persons and anti-money laundering rules and regulations businesses as they shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, collective bargaining agreements and other arrangements with employees, the Patriot Actannual (or other audited) financial statements of the Guarantor, the Borrower and their respective Subsidiaries for the fiscal years ended 2015, 2016 and 2017, interim financial statements of the Guarantor, the Borrower and their respective Subsidiaries dated the end of the most recent fiscal quarter for which financial statements are available (or, in the event the Administrative Agent’s due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the Closing Date); and no changes or developments shall have occurred, and no new or additional information, shall have been received or discovered by the Administrative Agent or the Lenders regarding the Guarantor, the Borrower or their respective Subsidiaries or the transactions contemplated hereby after June 30, 2018 that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, and nothing shall have come to the attention of the Administrative Agent or the Lenders to lead them to believe that the transactions contemplated hereby will have a Material Adverse Effect.
(le) Since June 8No action, 2009suit, no material changes in governmental regulations investigation or policies affecting any Loan Party or any Credit Party shall have occurred prior proceeding is pending or, to the Closing Dateknowledge of the Guarantor or the Borrower, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect.
(mf) intentionally omitted.
(n) The All interest and fees accrued under the Existing Credit Agreement through the Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify been paid in full by the Lead Borrower and the Lenders of the Closing DateBorrower, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of Section 9.02, for purposes of determining compliance with the conditions specified in this Section 0, each Lender (other than an Agent or the Canadian Agent) 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. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit Extension, 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 as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds reasonably satisfactory evidence thereof.
(qg) The Administrative Agent To the extent that the Borrower or Guarantor qualifies as a “legal entity customer” under the Canadian AgentBeneficial Ownership Regulation, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender it shall have received delivered to each Lender that so requests, a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to complyBeneficial Ownership Certification.
Appears in 1 contract
Conditions Precedent to Credit Extensions. 4.01 Conditions to the Amendment and Restatement and the Extension of Initial Credit Extensionthe Term Loan. The obligation of the L/C Issuer and each Lender to enter into the Amendment and Restatement and make its initial Credit Extension hereunder extension of the Term Loan is subject to satisfaction of the following conditions precedent:
(a) The Administrative AgentLender’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) facsimiles (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated as of the Restatement Date (if applicable):or, in the case of certificates of governmental officials, as of a recent date before the Restatement Date) and each in form and substance reasonably satisfactory to the Lender and its legal counsel:
(i) executed counterparts of this Agreement, the Restated Disclosure Letter, each New Guarantor Accession Agreement, and the Guarantor Consent sufficient in number for distribution to the Lender and the Borrower;
(ii) a Term Note (if requested by the Lender) executed by each applicable the Borrower in favor of each the Lender requesting and a NoteRevolving Note (if requested by the Lender) executed by the Borrower in favor of the Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Lender may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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;
(iv) copies of such documents and certifications as the Lender may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each such Loan Party is validly existing, in good standing (where applicable, and qualified to engage in business in its state of organization or such other customary functionally equivalent certificates, to the extent available formation and in the applicable jurisdiction) from each state in which such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effectprincipal offices are located;
(v) a favorable opinion certificate of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and so required;
(Dvi) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture[reserved];
(vii) intentionally omitteda favorable opinion of legal counsel to the Borrower (which may be internal legal counsel), addressed to the Lender, as to the matters addressed in the opinion of legal counsel to the Borrower delivered to the Lender in connection with the closing of the Existing Credit Agreement;
(viii) except such board resolutions, officer’s certificates, and corporate and other documents as set forth the Lender shall reasonably request in connection with the post-Closing Letter, evidence that all insurance required accession of the New Guarantors to be maintained the Guaranty pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;New Guarantor Accession Agreements; and
(ix) a payoff letter from such other assurances, certificates, documents, or consents or opinions as the agent for Lender reasonably may require.
(i) the lenders aggregate Outstanding Amount of Total Revolving Outstandings outstanding under the Existing Credit Agreement reasonably satisfactory in form and substance immediately prior to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Restatement Date is being terminated, all obligations thereunder are being paid in full (except shall not exceed an amount equal to the extent expressly set forth therein)Revolving Commitment hereunder, (ii) the aggregate Outstanding Amount of all Revolving Loans and all Liens securing obligations L/C Obligations, in each case outstanding under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (immediately prior to the extent required by the Pledge Agreement)Restatement Date and denominated in Alternative Currencies, together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered shall not exceed an amount equal to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination Dollar Equivalent of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan DocumentsAlternative Currency Sublimit hereunder, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereof.
(b) After giving effect to (iiii) the first funding under Outstanding Amount of the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations L/C Obligations outstanding under the Existing Credit Agreement on immediately prior to the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability Restatement Date shall not be less than $10,000,000exceed an amount equal to the Letter of Credit Sublimit hereunder.
(c) The Administrative Agent and the Canadian Agent Borrower shall have received a Borrowing Base Certificate dated the Closing Datepaid all unpaid fees (including all Commitment Fees), relating costs, expenses and interest, in each case to the month ended on June 30, 2009, and executed by a Responsible Officer of extent having accrued under the Lead Borrower or Existing Credit Agreement to the ParentRestatement Date.
(d) The Co-Collateral Agents Borrower shall have paid any fees (including the upfront fee specified in Section 2.08(b)) required to be reasonably satisfied with paid on or prior to the results of the inventory appraisal conducted by Great American Group dated April, 2009Restatement Date.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements Attorney Costs of counsels to the Agents and Arrangers Lender to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Restatement Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder Attorney Costs as shall constitute such counsels’ the Lender’s reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings related to the Amendment and Restatement (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or Arrangerthe Lender).
(kf) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Restatement Date shall have occurred on or before July 31December 15, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of Section 9.02, for purposes of determining compliance with the conditions specified in this Section 0, each Lender (other than an Agent or the Canadian Agent) 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. 2010.
4.02 Conditions to all Credit ExtensionsExtensions and to the Amendment and Restatement. The obligation of each the Lender to honor enter into the Amendment and Restatement and to make any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion or extension of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO a Eurocurrency Rate Loans or BA Equivalent LoansLoan) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(oa) The representations and warranties of the Borrowers Borrower and each other Loan Party contained in Article V or any other Loan DocumentDocument (i) that are qualified by materiality shall be true and correct, and (ii) that are not qualified by materiality, shall be true and correct in all material respects (orrespects, in the case of any representation and warranty qualified by materialityeach case, in all respects) on and as of the Restatement Date or the date of such Credit Extension, except as the case may be, except, in each case, 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 as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), ;
(b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No no Default shall exist, or would result from such proposed Credit Extension or from Amendment and Restatement, as the application of the proceeds thereof.case may be;
(qc) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension Loan Notice in accordance with the requirements hereof. Each Request for ; and
(d) in the case of a Credit Extension to be denominated in an Alternative Currency, there shall not have occurred any change in national or international financial, political or economic conditions or currency exchange rates or exchange controls which in the reasonable opinion of the Lender would make it impracticable for such Credit Extension to be denominated in the relevant Alternative Currency. Each Loan Notice (other than a Committed Loan Notice requesting only a conversion or extension of a Committed Loan to another Type of Committed Loan or a continuation of LIBO a Eurocurrency Rate Loans or BA Equivalent LoansLoan) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o4.02(a) and (pb) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Sources: Credit Agreement (Copart Inc)
Conditions Precedent to Credit Extensions. Section 4.01 Conditions of Initial to Credit ExtensionExtensions on the Closing Date. The obligation of the L/C Issuer and each Lender to make its initial a Credit Extension hereunder on the Closing Date is subject only to satisfaction of the following conditions precedent, except as otherwise agreed between the Holdings and the Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies pdf copies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) facsimiles (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party (if applicable):Party, each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel:
(i) a Committed Loan Notice and, if applicable, a Letter of Credit Application, each in accordance with the requirements hereof;
(ii) executed counterparts of this Agreement;
(iii) each Collateral Document set forth on Schedule 1.01C required to be executed on or prior to the Closing Date by the Loan Parties (as the case may be) as indicated on such schedule, duly executed by each Loan Party thereto;
(iv) a copy of the Engagement Letter duly executed and delivered by Parent;
(v) a copy of an Accession Deed (as defined in the Existing Intercreditor Agreement) duly executed and delivered by each party thereto;
(vi) in the case of the Co-Borrower (i) a copy of the certificate or articles of incorporation, including all amendments thereto, of the Co-Borrower, certified as of a recent date by the Secretary of State of the jurisdiction of its organization, and certificates of good standing (to the extent such concept exists) from such applicable Secretary of State, (ii) a Note executed by each applicable certificate of the secretary or assistant secretary of the Co-Borrower in favor dated on or about the date of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing this Agreement and certifying (A) that attached thereto is a true and complete copy of the authority Organization Documents of each Loan Party the Co-Borrower as in effect on the date of that certificate and at all times since a date prior to enter into this Agreement 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 other board of directors or similar governing body of the Co-Borrower authorizing the execution, delivery and performance of the Loan Documents to which such Loan Party Person is a party and the borrowings to be made by it 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 organization of the Co-Borrower 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 the Co-Borrower; and (iii) a certificate of another officer as to the incumbency and specimen signature of the secretary or assistant secretary executing the certificate pursuant to clause (ii) above;
(vii) in the case of the Borrower (i) an electronically delivered extract from the Luxembourg Companies Register pertaining to the Borrower dated not earlier than one Business Day before the date of this Agreement, (ii) a copy of the up-to-date articles of incorporation, including all amendments thereto, of the Borrower, (iii) a copy of a certificate of non-registration of judgments (certificate de non inscription d’une décision judiciaire), issued by the Luxembourg Register of Commerce and Companies with regard to the Borrower dated on the date of this Agreement, and (iv) a certificate of an authorized signatory of the Borrower dated on or about the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of the Borrower as in effect on the date of that certificate, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the identityboard of managers of the Borrower, authority and capacity the board of directors or managers or similar governing body of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement such entity authorizing the execution, delivery and performance of the other Loan Documents to which such Person is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) a specimen signature of each officer executing any Loan Party Document or any other document delivered in connection herewith on behalf of each such entity;
(viii) In the case of the Dutch Loan Parties
(1) A copy of the articles of association (statuten) and deed of incorporation (oprichtingsakte) of each Dutch Loan Party, as well as an extract (uittreksel) from the Dutch Commercial Register (Handelsregister) of such Dutch Loan Party.
(2) A copy of a resolution of the board of managing directors of each Dutch Loan Party:
(A) approving the terms of, and the transactions contemplated by, the Loan Documents to which it is a party and resolving that it executes the Loan Documents to which it is a party;
(ivB) copies if applicable, authorising a specified person or persons to execute the Loan Documents to which it is a party on its behalf; and
(C) confirming that there are no works councils with jurisdiction over the transactions contemplated by this Agreement.
(3) If applicable, a copy of the resolution of the board of supervisory directors of each Dutch Loan Party approving the resolutions of the board of managing directors referred to under (b) above.
(4) A copy of the resolution of the shareholder(s) of each Dutch Loan Party approving the resolutions of the board of managing directors referred to under (b) above.
(5) A specimen of the signature of each member of the board of managing directors of each Dutch Loan Party and, if applicable, each person authorised by the resolutions referred to in paragraph (b) sub (ii) and/or (iii) above in relation to the Loan Documents.
(ix) In the case of a Cyprus Loan Party’s certificate or :
(1) A copy of the constitutional documents (including memorandum and articles of incorporation association (in Greek and bylaws in English), certificate of incorporation, certificates of change of name (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) if any), certificate of directors and a secretary, certificate of shareholders, certificate of registered office address, certificate of good standing (where applicableand certificate of solvency) of the Cyprus Loan Party issued by the Cyprus registrar of companies and, or such other customary functionally equivalent certificatesin the case of the certificate of good standing and the certificate of solvency, dated as nearly as possible to the extent available in Closing Date.
(2) A copy of a resolution of the applicable jurisdiction) from such board of directors of the Cyprus Loan Party’s jurisdiction of organization :
(A) approving the terms of, and from each jurisdiction where such the transactions contemplated by, the Loan Party’s ownership, lease or operation of properties or Documents to which it is a party and resolving that it execute the conduct of its business requires such qualification, except Loan Documents to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have which it is a Material Adverse Effectparty;
(vB) authorising a favorable opinion specified person or persons to execute the Loan Documents to which it is a party on its behalf;
(C) authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with the Loan Documents to which it is a party; and
(D) approving the Cyprus Law Pledge Amendment and Restatement Agreement (as defined in Schedule 1.01C).
(3) A copy of a resolution signed by all the holders of the issued shares in the Cyprus Loan Party approving the terms of, and the transactions contemplated by, the Loan Documents to which it is a party.
(4) A copy of the power of attorney (if any) issued by the Cyprus Loan Party in favour of the person or persons authorised by the resolution referred to in (2) above to sign the Loan Documents to which it is a party on its behalf.
(5) A specimen of the signature of each person authorised by the resolution referred to in paragraph (2) above.
(6) A certificate of the Cyprus Loan Party (signed by an authorised signatory) confirming that securing/guaranteeing such Credit Extension and the Loans would not cause any security, guarantee or other similar limit binding on the Cyprus Loan Party to be exceeded.
(7) An incumbency certificate from the secretary of the Cyprus Loan Party addressed to the Cyprus counsel for the Agents in a form acceptable to them;
(8) A copy of the power of attorney issued by the Cyprus Loan Party in favour of Holdings in relation to the matters set out in Section 1.10(c);
(9) A certificate of the Cyprus Loan Party (signed by an authorized signatory), attaching thereto copies of, inter alia, the documents referred to in paragraphs (ix)(1) to (ix)(8) certifying that each copy of such document relating to it specified in this Section 4.01 (ix) is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement
(10) Evidence in the form of an extract from the register of charges of the Cyprus Loan Party, certified by its secretary, showing that particulars of each Collateral Document to which the Cyprus Loan Party is a party have been entered in the register of charges of the Cyprus Loan Party.
(x) Skaddenin the case of a Loan Party incorporated or situated in the UK or the island of Guernsey, Arps(i) a copy of the Organization Documents pertaining to each such entity and (ii) a certificate of an authorized signatory of each such entity dated on or about the date of this Agreement and certifying (A) that attached thereto is a true and complete copy of the Organization Documents of each such entity as in effect on the date of that certificate, Slate(B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or written resolutions of the directors of each such entity approving the terms of, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLPand the transactions contemplated by and authorizing the execution, special counsel delivery and performance of the Loan Documents to which such Person is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) a specimen signature of each director or authorised signatory authorised to execute any Loan Document or any other document delivered in connection herewith on behalf of each such entity, (D) that the Domestic guaranteeing, borrowing or securing by it of amounts under the Loan PartiesDocuments would not cause any limit binding on it to be exceeded, addressed and (E) in respect of any Loan Party organized or situated in the island of Guernsey, a copy of its register of members with a note of the security created over the issued shares in favor of the Collateral Agent noted thereon;
(xi) in the case of an Australian Loan Party:
(1) a certified copy of the certificate of registration of the Australian Loan Party;
(2) a certified copy of the constitution of the Australian Loan Party;
(3) a certified copy of the board minutes of a meeting of the directors of the Australian Loan Party which:
(A) provides evidence of the directors’ decision for the Australian Loan Party to execute the Administrative Agent and Loan Documents (to which it is proposed to become a party) (which, for this purpose, shall be taken to include the confirmation deed between, amongst others, each Domestic Lender, as to customary matters concerning of the Domestic Australian Loan Parties and the Collateral Agent (the “Confirmation Deed”));
(B) provides evidence of the appointment of the attorney appointed to execute the Loan DocumentsDocuments (to which the Australian Loan Party is proposed to become a party) and the Confirmation Deed, if the Loan Documents (to which the Australian Loan Party is proposed to become a party) and the Confirmation Deed are to be executed under power of attorney; and
(C) acknowledges that the Loan Documents (to which the Australian Loan Party is proposed to become a party) and the Confirmation Deed will benefit the Australian Loan Party;
(4) a certified copy of the sole member’s circulating resolution of the Australian Loan Party or a resolution of the members of the Australian Loan Party (as applicable) which resolves to authorize the Australian Loan Party’s execution of the Loan Documents (to which the Australian Loan Party is proposed to become a party) and the Confirmation Deed;
(5) if the Loan Documents (to which the Australian Loan Party is proposed to become a party) and the Confirmation Deed are to be executed under power of attorney, a certified copy of the power of attorney together with a certified extract of board minutes evidencing the appointment of the attorney appointed to execute the Loan Documents (to which the Australian Loan Party is proposed to become a party) and the Confirmation Deed;
(6) a director’s certificate which (i) attaches the documents referred to in sub-paragraphs (1) to (5) (inclusive) above and (yii) Fraser ▇▇▇▇▇▇ Casgrain LLP certifies that:
(A) the Australian Loan Party has been duly incorporated and is validly existing;
(B) the Australian Loan Party has power to execute the Loan Documents (to which the Australian Loan Party is proposed to become a party) and the Confirmation Deed;
(C) the Loan Documents (to which the Australian Loan Party is proposed to become a party) and the Confirmation Deed do not contravene the Australian Loan Party’s constitution or cause a limitation on the Australian Loan Party’s powers or the powers of its directors to be exceeded;
(D) the Australian Loan Party benefits from executing the Loan Documents (to which the Australian Loan Party is proposed to become a party) and the Confirmation Deed; and
(E) each of the documents attached to the certificate is correct, complete, in full force and effect and has not been amended or superseded as at the date of the certificate;
(xii) an opinion from (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsels New York counsel to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(viii) a certificate signed by a Responsible Officer of the Lead Borrowereach local counsel listed on Schedule 4.01, satisfactory in form and substance to the Agents, certifying each case (A) that dated on or about the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfieddate of this Agreement, (B) either that (1) no consentsaddressed to the Administrative Agent, licenses or approvals are required in connection with the execution, delivery and performance by any Loan Party L/C Issuers and the validity against Lenders, and (C) covering such customary matters (taking into account customary practice in non-U.S. jurisdictions) relating to the capacity of the respective entities to execute Loan Party Documents and the Transactions as the Administrative Agent shall reasonably request;
(xiii) an opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, English law counsel to the Secured Parties (A) dated on or about the date of this Agreement, (B) addressed to the Administrative Agent, the L/C Issuers and the Lenders, and (C) covering such customary matters (taking into account customary practice in non-U.S. jurisdictions) relating to the enforceability of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, the Transactions as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement shall reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agentsrequest;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets fully executed version of the Loan PartiesExisting Intercreditor Agreement, except for Permitted Encumbrances as amended and Liens for which termination statements and releases are being tendered concurrently with restated on or about the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; andClosing Date;
(xv) (A) all UCC financing statements and PPSA financing statementsa fully executed Mezzanine Facility Agreement, required by Law including an amendment or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered consent thereto entered into on or prior to the Closing Date pursuant to Section 6.07 hereofDate;
(xvi) the Original Financial Statements;
(xvii) Ancillary Facility Documents in effect as of the Closing Date; and
(xviii) The agreed list of Approved Revolving Lenders.
(b) After giving effect The Closing Fee and all fees and expenses due to the Administrative Agent, the Lead Arrangers, the Lenders and their Affiliates required to be paid on the Closing Date and (iin the case of expenses) invoiced at least three (3) Business Days before the first Closing Date (except as otherwise reasonably agreed by Holdings) shall have been paid from the proceeds of the initial funding under the Loans Facilities, including fees pursuant to the Engagement Letter.
(if anyc) Substantially concurrently with the initial Borrowing on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent Refinancing shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parentbeen consummated.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable under applicable “know your customer” and anti-money laundering rules and regulations regulations, including, without limitation, the Patriot USA PATRIOT Act, in each case to the extent requested by the Administrative Agent in writing at least five (5) Business Days prior to the date of this Agreement(1).
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(ne) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of Section 9.02, for purposes of determining compliance with the conditions specified in this Section 0, each Lender (other than an Agent or the Canadian Agent) 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. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties copy of the Borrowers audited consolidated financial statements of Parent and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in its Restricted Subsidiaries for the case of any representation and warranty qualified by materiality, in all respects) on and as fiscal year of the date of such Credit ExtensionParent ending March 31, 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 as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 02014.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(qf) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as copy of the date of tax structure memorandum prepared by Ernst & Young LLP (the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply“Tax Structure Memorandum”).
Appears in 1 contract
Conditions Precedent to Credit Extensions. Conditions of Initial Credit ExtensionExtension . The obligation of the any L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):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 this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Domestic Borrower;
(ii) a Revolving Credit Note executed by each applicable of the Borrowers in favor of each Revolving Credit Lender requesting a Revolving Credit Note, and an Initial Term Note executed by the Domestic Borrower in favor of each Term Lender requesting a an Initial Term Note;
(iiiA) the Collateral Documents or any amendments or modifications thereto, duly executed by each Loan Party, to the extent required under local law to ensure the continuing validity and enforceability of such Collateral Document or to ensure the continuing security interests in the applicable assets (and the continuing perfection thereof) granted or purported to be granted pursuant to such Collateral Documents, including, without limitation, in the assets of the Domestic Borrower, the Foreign Borrower and the Foreign Guarantors and in the Equity Interests in the Foreign Borrower, Diodes Holdings UK Limited, Diodes Zetex Limited and Diodes Hong Kong, and all related confirmations, authorizing resolutions, legal opinions and such other agreements, documents, certificates, filings, notarizations, and recordations,
(B) certificates representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank and instruments evidencing the Pledged Debt indorsed in blank (to the extent available in any non‑U.S. jurisdiction), in each case to the extent such Pledged Equity is certificated and has not previously been delivered to the Administrative Agent; and the Administrative Agent shall have received satisfactory evidence that the Liens in favor of the Administrative Agent on the equity interests of the Foreign Loan Parties required to be pledged have been validly created, are enforceable and have been perfected under the laws of each applicable jurisdiction,
(C) proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable (or the foreign equivalent thereof) in order to perfect the Liens created under the Collateral Documents, covering the Collateral described in the Collateral Documents as well as UCC, Lien and Intellectual Property, charge, and other searches (to the extent available in any non‑U.S. jurisdiction) and other evidence satisfactory to the Administrative Agent that such Liens are the only Liens upon the Collateral, except Liens permitted hereunder,
(D) completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(E) evidence of the completion of all other actions, recordings and filings of or with respect to the Collateral Documents that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby, and
(F) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect or continue perfection of the Liens created under the Collateral Documents has been taken (including receipt of duly executed payoff letters, UCC‑3 termination statements and landlords’ and bailees’ waiver and consent agreements);
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(vvi) a favorable opinion of (x) SkaddenSheppard, Arps, SlateMullin, ▇▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇, LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; Documents as the Required Lenders may reasonably request;
(vii) a favorable opinion of NautaDutilh New York P.C., local counsel to the Loan Parties in the Netherlands, addressed to the Administrative Agent and each Lender, as to matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(yviii) Fraser ▇a favorable opinion of ▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Overy LLP, counsels local counsel to the Canadian Loan PartiesParties in the United Kingdom, addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan DocumentsDocuments as the Required Lenders may reasonably request;
(viix) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying Domestic Borrower either (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any each Loan Party and the validity against such each Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (CB) thatstating that no such consents, as licenses or approvals are so required;
(x) a certificate signed by a Responsible Officer of the Domestic Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(xi) no action, suit, investigation, litigation or proceeding pending or, to the knowledge of either Borrower, threatened in any court or before any arbitrator or governmental instrumentality that in the Administrative Agent’s or Arrangers’ judgment could reasonably be expected to have a Material Adverse Effect;
(xii) annual audited financial statements of the Domestic Borrower and its Subsidiaries on a consolidated basis for the fiscal year ended 2019;
(xiii) interim financial statements of the Domestic Borrower and its Subsidiaries on a consolidated basis described in Section 5.05(b);
(xiv) pro forma financial statements for the Domestic Borrower and its Subsidiaries on a consolidated basis for the fiscal period ending on March 31, 2020, including forecasts prepared by management of the Domestic Borrower, of consolidated balance sheets and statements of income or operations and cash flows of the Domestic Borrower and its Subsidiaries on a quarterly basis for the first year following the Closing Date and on an annual basis for each year thereafter during the term of this Agreement;
(xv) certificates attesting to the Solvency of each Borrower and their respective Subsidiaries before and after giving effect to the financing under this Agreement and the transactions contemplated hereby, from the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 chief financial officer of the Senior Note IndentureDomestic Borrower and from a Responsible Officer of the Foreign Borrower;
(viixvi) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(xxvii) the Security Documents set forth on Schedule 4.01(a)(x) hereto documentation and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (other information as to the extent required each Loan Party as requested by the Pledge Agreement), together Administrative Agent and each Lender in order to comply with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination requirements of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been madePATRIOT Act; and
(xvxviii) (A) all UCC financing statements and PPSA financing statementssuch other assurances, required by Law certificates, documents, consents or reasonably requested by opinions as the Agents Administrative Agent, each L/C Issuer, the Swingline Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereofRequired Lenders reasonably may require.
(b) After giving effect Each Lender shall have obtained all applicable licenses, consents, permits and approvals as deemed necessary by such Lender in order to (i) execute and perform the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties transactions contemplated by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent Borrowers shall have received a Borrowing Base Certificate dated repaid Revolving Credit Loans, Swingline Loans and L/C Borrowings and/or Cash Collateralized the L/C Obligations (other than the L/C Borrowings) in an aggregate amount such that the Total Revolving Credit Outstandings do not exceed the Revolving Credit Facility in effect following the Closing Date, relating taking into account the instructions by the Domestic Borrower to make such transfers among the month ended on June 30, 2009, Revolving Credit Facility and executed by a Responsible Officer the Term Facility as may be necessary to ensure that all Outstanding Amounts and Commitments are in accordance with the Applicable Percentages of the Lead Borrower or Lenders under the Parentrelevant Facility and in accordance with this Agreement.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All Any fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(je) The Borrowers Domestic Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Domestic Borrower and any Agent or Arrangerthe Administrative Agent).
(kf) The Agents Lenders shall have completed a due diligence investigation of the Borrowers, their respective Subsidiaries in scope, and with results, satisfactory to the Lenders, and shall have been given such access to the management, records, books of account, contracts and properties of the Borrowers and their respective Subsidiaries and shall have received all documentation such financial, business and other information required by regulatory authorities under applicable “know your customer” regarding each of the foregoing Persons and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party businesses as they shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Partiesrequested. Without limiting the generality of the provisions of the last paragraph of Section 9.029.03, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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. Conditions to all Credit ExtensionsExtensions . The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan Loans to another Type of Committed Loanthe other Type, or a continuation of LIBO Eurocurrency Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(oa) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit Extension, 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 as of such earlier date, and except that for purposes of this Section 04.02, the representations and warranties contained in subsections (a), ) and (b) and (f) of Section 5.01 5.05 shall be deemed to refer to the most recent statements, if any, statements furnished pursuant to clauses subsections (a), (b) and (db), respectively, of Section 06.01, and the representations and warranties contained in Section 5.24 shall only have effect on and following the Lite-On Acquisition Date.
(pb) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(qc) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the applicable L/C Issuer or the Swing Line Swingline Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.
(d) In the case of a Credit Extension to be denominated in an Alternative Currency, such currency remains an Eligible Currency.
(e) There shall be no impediment, restriction, limitation or prohibition imposed under Law or by any Governmental Authority, as to the proposed financing under this Agreement or the repayment thereof or as to rights created under any Loan Document or as to application of the proceeds of the realization of any such rights. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan Loans to another the other Type of Committed Loan or a continuation of LIBO Eurocurrency Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, Borrowers shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o4.02(a) and (pb) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Sources: Credit Agreement (Diodes Inc /Del/)
Conditions Precedent to Credit Extensions. Section 4.01 Conditions of to the Initial Credit ExtensionExtension on the Closing Date. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder on the Closing Date is subject to satisfaction or waiver in accordance with Section 10.01 of each of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent:
(a) The Administrative Agent’s receipt Agent shall have received all of the following, each of which shall be originals or telecopies facsimiles or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) files unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party (if applicable):), each dated as of the Closing Date (or, in the case of
(i) executed counterparts of (A) this AgreementAgreement from Holdings and the Borrower, (B) the Holdings Guaranty from Holdings, (C) the Subsidiary Guaranty from each Subsidiary Guarantor, and (D) the Equal Priority Intercreditor Agreement from Holdings, the Borrower, the Administrative Agent and the First Lien Administrative Agent;
(ii) a Note the Security Agreement, duly executed by Holdings, the Borrower and each applicable Borrower in favor of each Lender requesting a Note;
Subsidiary Guarantor, together with: (iii1) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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;
(iv) copies of each Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except not delivered to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to Existing First Lien Administrative Agent as bailee for the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of Equal Priority Intercreditor Agreement, certificates, if any, representing the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required Pledged Interests accompanied by the Pledge Agreement), together with copies of undated stock powers executed in blankblank (or stock transfer forms, each duly executed by as applicable) and instruments evidencing the applicable Loan Parties Pledged Debt indorsed in blank (originals or instrument of which are being transfer, as applicable) shall have been delivered to the US Term Loan Collateral Agent, and (2) copies of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all United States jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect the Liens on assets of Holdings, the Borrower and each Subsidiary Guarantor created under the Security Agreement, covering the Collateral described in the Security Agreement, and (3) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect the Liens created thereby (subject to the Intercreditor Agreement);
(xiPerfection Exceptions) all other Loan Documents set forth on Schedule 4.01(a)(xi) heretoshall have been taken, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) completed or otherwise provided for in a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be manner reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Administrative Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B4) Credit Card Notifications and Blocked Account Agreements an Intellectual Property Security Agreement, duly executed by each Loan Party that owns intellectual property that is required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of Section 9.02, for purposes of determining compliance with the conditions specified in this Section 0, each Lender (other than an Agent or the Canadian Agent) 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. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit Extension, 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 as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension pledged in accordance with the requirements hereof. Each Request for a Credit Extension Collateral Documents; (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loansiii) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.[reserved];
Appears in 1 contract
Sources: Credit Agreement (V2X, Inc.)
Conditions Precedent to Credit Extensions. 4.01 Conditions of Initial Effectiveness of this Agreement and Credit Extension. The effectiveness of this Agreement and the obligation of the L/C Issuer and each Lender to make its initial any Credit Extension hereunder is on the Closing Date are subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or originals, telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” “via e-mail”) (followed promptly by originals) unless otherwise specified, 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 Agent:
(i) counterparts of this Agreement each properly executed by a Responsible Officer of the signing Loan Party (if applicable):
(i) executed counterparts of this Agreementand the Lenders sufficient in number for distribution to the Agent, each Lender and the Lead Borrower;
(ii) a Note executed by each applicable Borrower the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to become a party and (B) the identity, authority and capacity of each Responsible Officer thereof DB1/ 97390493.6 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 become a party;
(iv) copies of each Loan Party’s certificate or articles of incorporation Organization Documents and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificatesdocuments and certifications as the Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, LLP, counsels counsel to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary such matters concerning the Canadian Loan Parties and the Loan DocumentsDocuments as the Agent may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, Borrower certifying (A) that the conditions specified in Sections ARTICLE IV(o) 4.01 and (p) 4.02 have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ixviii) a payoff letter from the agent Term Loan Agent for the lenders under the Existing Credit Agreement reasonably Term Loan Agreement, satisfactory in form and substance to the Agents Agent, evidencing that the Existing Credit Term Loan Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder have been or concurrently with the Closing Date are being paid in full (except to the extent expressly set forth therein)full, and all Liens securing obligations under the Existing Credit Term Loan Agreement have been, been or concurrently with the Closing Date are being, being released;
(xix) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement)thereunder, together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement)Parties;
(xix) all other Loan Documents set forth on Schedule 4.01(a)(xi) heretoDocuments, each duly executed by the applicable Loan Parties;
(xiixi) appraisal based on forced liquidation value by a third party appraiser acceptable to the Intercreditor AgreementAgent of all Eligible Trade Names of the Borrowers;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xivxii) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents Agent (in each case dated as of a date reasonably satisfactory to the Co-Collateral AgentsAgent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases satisfactory to the Agent are being tendered DB1/ 97390493.6 concurrently with the initial such extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made; and;
(xvxiii) (A) all UCC financing statements documents and PPSA instruments, including Uniform Commercial Code financing statements, required by Law law or reasonably requested by the Agents or the Canadian Agent, as applicable, Agent to be filed, registered or recorded to create, create or perfect or protect the first priority Liens intended to be created under the Loan DocumentsDocuments and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Agent, (B) the Credit Card Notifications, and Account Control Agreements required pursuant to Section 6.12 hereof shall have been obtained, and (BC) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior control agreements with respect to the Closing Date pursuant to Section 6.07 hereofLoan Parties’ securities and investment accounts have been obtained; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing DateLoans, (ii) the payment of all fees and other amounts due any charges to the Credit Parties by Loan Account made in connection with the Borrowers on the Closing Date as required under the Loan Documents, credit facility contemplated hereby and (iii) all Letters of Credit to be issued on at, or immediately subsequent to, the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000twenty-five percent (25%) of the Revolving Loan Cap.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30May 5, 20092018, and executed by a Responsible Officer of the Lead Borrower or the ParentBorrower.
(d) The Co-Collateral Agents Agent shall be reasonably satisfied with that any financial statements delivered to it and the results Lenders fairly present the business and financial condition of the inventory appraisal conducted by Great American Group dated April, 2009Loan Parties and that there has been no Material Adverse Effect since the date of the Audited Financial Statements.
(e) The Administrative Agent and the Lenders shall have received, received and be satisfied with (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (iix) a detailed forecast financial projections and business assumptions on a quarterly basis for the one year period commencing with following the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010Closing Date, which shall include an Availability modelmodel (prepared on a twelve month basis), Americas Consolidated income statement, balance sheet, and statement of cash flow, by monthand (y) a detailed forecast on an annual basis for each of the three Fiscal Years thereafter, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow, in each case prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practicespractices and (ii) such other information (financial or otherwise) reasonably requested by the Agent.
(f) The Lead Borrower There shall not be pending any litigation or any Subsidiary shall other proceeding, the result of which, either individually or in the aggregate, could reasonably be expected to have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000Material Adverse Effect.
(g) The Agents There shall not have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies occurred any default of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agentsany Material Contract of any Loan Party.
(h) All necessary consents and approvals to The consummation of the transactions contemplated hereby shall have been obtainednot violate any Law or any Organization Document.
(i) All fees required to be paid by to the Borrowers to any of the Agents Agent or the Arrangers Arranger on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.. DB1/ 97390493.6
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings Closing Date (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arrangerthe Agent).
(k) The Agents Upon the reasonable request of the Agent or any Lender made at least ten (10) days prior to the Closing Date, the Lead Borrower shall have received all provided to the Agent and such Lender the documentation and other information required by regulatory authorities under so requested in connection with applicable “know your customer”, Anti-Corruption Laws and Anti-Money Laundering, including the Act, in each case at least five (5) days prior to the Closing Date. At least five (5) days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” and anti-money laundering rules and regulations including, without limitation, under the Patriot ActBeneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower.
(l) Since June 8, 2009, no No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date There shall not have occurred on any disruption or before July 31material adverse change in the United States financial or capital markets in general that has had, 2009. The Administrative Agent shall notify in the Lead Borrower and the Lenders reasonable opinion of the Closing DateAgent, and such notice shall be conclusive and binding a material adverse effect on the Loan Partiesmarket for loan syndications or adversely affecting the syndication of the Loans. Without limiting the generality of the provisions of Section 9.029.04, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) 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. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit Extension, 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 as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Conditions Precedent to Credit Extensions. Section 4.01. Conditions of to the Initial Credit ExtensionExtension on the Closing Date. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder on the Closing Date is subject to satisfaction or due waiver in accordance with Section 10.01 of each of the following conditions precedent, except as otherwise agreed between the Borrower and the Required Lenders:
(a) The Administrative Agent’s receipt , the Ally Representative and the Blackstone Credit Representative shall have received all of the following, each of which shall be originals or telecopies facsimiles or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) files unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated as of the Closing Date (if applicableor, in the case of certificates of governmental officials, as of a recent date before the Closing Date), each in form and substance reasonably satisfactory to the Blackstone Credit Representative, and each accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to the Borrower and its Subsidiaries, giving effect to the Transactions):
(i) executed counterparts of (A) this Agreement from Holdings and the Borrower, (B) the Holdings Guaranty from Holdings, (C) the Subsidiary Guaranty from the Subsidiary Guarantors, (D) the Intercompany Subordination Agreement, (E) the perfection certificate and (F) the Fee Letters;
(ii) the Security Agreement, duly executed by the Borrower and each Guarantor, together with (subject to the last paragraph of this Section 4.01):
(1) certificates, if any, representing the Pledged Interests, to the extent received by the Borrower after Borrower’s use of commercially reasonable efforts to receive such certificates or otherwise without undue burden or expense, in each wholly owned Subsidiary other than Immaterial Subsidiaries, accompanied by undated stock powers executed in blank (or stock transfer forms, as applicable) and instruments evidencing the Pledged Debt indorsed in blank (or instrument of transfer, as applicable) shall have been delivered to the Collateral Agent,
(2) copies of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all United States jurisdictions that the Blackstone Credit Representative may deem reasonably necessary in order to perfect and protect the Liens on assets of the Borrower and each Guarantor created under the Security Agreement, covering the Collateral described in the Security Agreement, and
(3) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby (subject to the Perfection Exceptions) shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Blackstone Credit Representative (including receipt of duly executed payoff letters, customary lien searches and UCC-3 termination statements);
(iii) an Intellectual Property Security Agreement, duly executed by each Loan Party that owns intellectual property that is required to be pledged in accordance with the Security Agreement;
(iv) a Note executed by each applicable the Borrower in favor of each Lender requesting a NoteNote reasonably in advance of the Closing Date;
(iiiv) a Committed Loan Notice, to be delivered to the Administrative Agent, the Ally Representative and the Blackstone Credit Representative at least five (5) Business Days prior to the Closing Date, relating to the initial Credit Extension;
(vi) a solvency certificate executed by the chief financial officer or similar officer, director or authorized signatory of the Borrower (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit G;
(vii) such certificates of resolutions or other actiondocuments and certifications (including Organization Documents and, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing if applicable, good standing certificates) as the Blackstone Credit Representative may reasonably require to evidence (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act of the Loan Parties acting as a Responsible Officer such in connection with this Agreement and the other Loan Documents to which such Loan Party and (B) that the Borrower and each Guarantor is a party;
(iv) copies duly organized or formed, and that each of each Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificatesthem is validly existing and, to the extent available applicable, in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualificationgood standing, except to the extent that failure to be so qualify in such jurisdiction qualified could not reasonably be expected to have a Material Adverse Effect;
(vviii) a favorable customary legal opinion of (xA) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels special New York counsel to the Canadian Loan PartiesBorrower and the Guarantors, addressed to the Canadian Agent and each Canadian LenderSecured Party, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents Blackstone Credit Representative and received(B) if applicable, or substantially simultaneously with local counsel reasonably acceptable to the initial Blackstone Credit Extension under this Agreement shall receive, gross proceeds Representative in each jurisdiction where any of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect Loan Parties is incorporated or organized, addressed to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8each Secured Party, 2009 relating thereto or otherwise in form and substance reasonably acceptable satisfactory to the AgentsBlackstone Credit Representative; and
(b) The Blackstone Credit Representative, the Ally Representative and the Administrative Agent shall have received unaudited consolidated balance sheets and the related consolidated statements of income and cash flows of Holdings and its Subsidiaries as of September 30, 2020.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(jc) The Borrowers shall have paid all reasonable Blackstone Credit Representative, the Ally Representative, the Administrative Agent and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents other Lenders shall have received from the Borrower and the Guarantors all documentation and other information reasonably requested in writing at least ten (10) days prior to the Closing Date by the Blackstone Credit Representative, the Ally Representative and the Administrative Agent as they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money money-laundering rules and regulations regulations, including, without limitation, the Patriot PATRIOT Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred each case at least three Business Days prior to the Closing DateDate (or such shorter period as the Administrative Agent shall otherwise agree).
(md) intentionally omittedThe Refinancing shall have been, or shall concurrently with the initial funding of the Facilities be, consummated.
(ne) The All fees required to be paid on the Closing Date pursuant to this Agreement, the Fee Letters and any other arrangements with the Administrative Agent and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to this Agreement or any other written agreement with Blackstone Credit, to the extent invoiced at least three Business Days prior to the Closing Date (or such later date as the Borrower may reasonably agree) shall have occurred on or before July 31, 2009. The Administrative Agent shall notify been paid (which amounts may be offset against the Lead Borrower and the Lenders proceeds of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesInitial Term Loans). Without limiting the generality of the provisions of Section 9.029.04, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or as of the Canadian Agent) that has signed this Agreement Closing Date shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder hereunder to be Consented consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit Extension, 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 as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Sources: Credit Agreement (KLDiscovery Inc.)
Conditions Precedent to Credit Extensions. Conditions of Initial Credit ExtensionEffectiveness . The obligation effectiveness of the L/C Issuer and each Lender to make its initial Credit Extension hereunder this Agreement is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mailmails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Restatement Effective Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Restatement Effective Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note executed by each applicable the Borrower in favor of each Revolving Credit Lender requesting a Revolving Credit Note and a Term Note executed by the Borrower in favor of each Term Lender requesting a Term Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing and qualified to engage in business in (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdictionA) from such Loan Party’s its jurisdiction of organization and from (B) each jurisdiction where such Loan Party’s 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ Traurig, LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent Agent, each Lender and each Domestic LenderL/C Issuer, as to such customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsmay reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying Borrower either (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a), (b) and (d) have been satisfied, (B) that there has been no event or circumstance since December 31, 2017, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in writing in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have a Material Adverse Effect;
(viii) a Solvency Certificate from the Borrower certifying that, as of the Closing Date after giving effect to the transactions contemplated herebyto occur on the Restatement Effective Date (including, without limitation, all Credit Extensions to occur on the Restatement Effective Date), the Loan Parties on Borrower and its Subsidiaries, taken as a consolidated basis whole, are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance duly completed Compliance Certificate, giving pro forma effect to the Agents evidencing that transactions to occur on or about the Existing Credit Agreement has been or concurrently with the Closing Restatement Effective Date is being terminated(including, without limitation, all obligations thereunder are being paid in full Credit Extensions to occur on the Restatement Effective Date) (except to such Compliance Certificate, the extent expressly set forth therein“Pro Forma Restatement Effective Date Compliance Certificate”), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreementfinancial statements referenced in Section 5.05(a), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreementb) and (d);
(xi) all other Loan evidence that the Prudential Note Documents set forth on Schedule 4.01(a)(xi) heretohave been, each duly executed by or substantially concurrently with the applicable Loan Parties;Restatement Effective Date are being, amended or amended and restated to conform the provisions relating to financial covenants and eligibility requirements for “pool properties” to the corresponding provisions with respect thereto in this Agreement pursuant to documentation reasonably satisfactory to the Administrative Agent; and
(xii) such other certificates, documents or consents as the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be Administrative Agent reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereofmay require.
(b) After giving effect to (i) the first funding Any fees required hereunder or under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit Fee Letter to be issued paid on or before the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability Restatement Effective Date shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000have been paid.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid Unless waived by the Borrowers to any of Administrative Agent, the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced (which invoice may be in summary form) prior to or on the Closing Restatement Effective Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or Arrangerthe Administrative Agent).
(kd) The Agents All accrued and unpaid interest and fees with respect to the Revolving Credit Commitments and Loans under the Existing Credit Agreement as of (and immediately prior to giving effect to) the Restatement Effective Date shall have been, or concurrently with the extensions of credit being made hereunder on the Restatement Effective Date will be, paid in full.
(e) At least ten Business Days prior to the Restatement Effective Date, the Administrative Agent and each Lender shall have received all documentation and other information required with respect to each of the Loan Parties that is required, in the Administrative Agent’s or such Lender’s judgment, by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) and regulations including, without limitation, implemented by the Patriot US Treasury’s Financial Crimes Enforcement Network under the Bank Secrecy Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of the last paragraph of Section 9.029.03, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Restatement Effective Date specifying its objection thereto. Conditions to all Credit ExtensionsExtensions . The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan Loans to another the other Type of Committed Loan, or a continuation of LIBO Eurodollar Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(oa) The representations and warranties of the Borrowers Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit Extension, except (i) to the extent that such representations and warranties specifically refer to an earlier datedate or period, in which case they shall be true and correct in all material respects as of such earlier datedate or for such earlier period, as applicable, (ii) that any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and except correct in all respects as of such date (but subject to the foregoing clause (i)) after giving effect to such qualification and (iii) that for purposes of this Section 04.02, the representations and warranties contained in subsections (a), ) and (b) and (f) of Section 5.01 5.05 shall be deemed to refer to the most recent statements, if any, statements furnished pursuant to clauses subsections (a), (b) and (db), respectively, of Section 06.01.
(pb) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(qc) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the an L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.
(d) The Minimum Lease Term Requirement shall be satisfied. Each Request for a Credit Extension submitted by the Borrower (other than a Committed Loan Notice requesting only a conversion of a Committed Loan Loans to another the other Type of Committed Loan or a continuation of LIBO Eurodollar Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o4.02(a), (b) and (pd) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Conditions Precedent to Credit Extensions. Section 4.01 Conditions of to the Initial Credit ExtensionExtension on the Closing Date. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder on the Closing Date is subject to satisfaction or due waiver in accordance with Section 10.01 of each of the following conditions precedent, except as otherwise agreed between the Parent Borrower and the Administrative Agent:
(a) The Administrative Agent’s receipt Agent shall have received all of the following, each of which shall be originals or telecopies facsimiles or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) files (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party (if applicable):
(i) executed counterparts of this Agreement;
(ii) a Note executed by Party, each applicable Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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;
(iv) copies of each Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, dated as of the Closing Date after giving effect to the transactions contemplated hereby(or, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (icertificates of governmental officials, as of a recent date before the Closing Date)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise each in form and substance reasonably satisfactory to the Agents Administrative Agent, and receivedeach accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to Holdings and its Subsidiaries, or substantially simultaneously with giving effect to the initial Credit Extension under Transactions): (i) executed counterparts of (A) this Agreement from Holdings and the Borrowers, (B) the Holdings Guaranty from Holdings, (C) the Subsidiary Guaranty from each Subsidiary Guarantor and (D) the Intercompany Subordination Agreement; (ii) a customary perfection certificate, duly executed by the Loan Parties; (iii) the Security Agreement, duly executed by Holdings, the Borrowers and each Subsidiary Guarantor, together with (subject to the last paragraph of this Section 4.01):
(1) certificates, if any, representing the Pledged Interests in each Borrower and each wholly owned Domestic Subsidiary other than Immaterial Subsidiaries, accompanied by undated stock powers executed in blank (or stock transfer forms, as applicable) and instruments evidencing the Pledged Debt indorsed in blank (or instrument of transfer, as applicable) shall receive, gross proceeds have been delivered to the Collateral Agent following pay-off of the Term Loans Existing Credit Agreements, (2) copies of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in a minimum amount all United States jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens on assets of $125,000,000.Holdings, each Borrower and each Subsidiary Guarantor created under the Security Agreement, covering the Collateral described in the Security Agreement, and (3) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby (subject to the Perfection Exceptions) shall have been taken, completed or otherwise provided for in a
(gb) The Agents Arrangers and the Administrative Agent shall have received (i) audited consolidated balance sheets and the Intercreditor Agreement duly executed by all parties thereto related consolidated statements of income and cash flows of the Parent Borrower as of and for the fiscal year ended December 31, 2019 and (ii) copies unaudited condensed consolidated balance sheets and the related consolidated statements of all material documents income of the Parent Borrower as of the end of and agreements duly executed by all parties thereto with respect for the six month period ended June 30, 2020 and as of and for any fiscal quarter (other than the fourth fiscal quarter) ended at least 45 days prior to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the AgentsClosing Date.
(hc) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained[reserved.] (d)
(i) All fees required to be paid by Holdings and the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to provided the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information reasonably requested in writing at least ten days prior to the Closing Date by the Arrangers as they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money money-laundering rules and regulations regulations, including, without limitation, the Patriot PATRIOT Act.
, in each case at least three business days prior to the Closing Date (lor such shorter period as the Administrative Agent shall otherwise agree) Since June 8and (ii) to the extent any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred at least five days prior to the Closing Date.
(m) intentionally omitted.
(n) The , any Lender that has requested, in a written notice to the Parent Borrower at least 2 days prior to the Closing Date shall have occurred on (or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of Section 9.02, for purposes of determining compliance with the conditions specified in this Section 0, each Lender (other than an Agent or the Canadian Agent) 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 shorter period as the Administrative Agent shall have received notice from such Lender prior otherwise agree), a Beneficial Ownership Certification in relation to the proposed Closing Date specifying its objection thereto. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit Extension, 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 as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in accordance with the requirements hereof. Each Request for a Credit Extension this clause (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loansii) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by satisfied).
(i) the Domestic Borrowers Refinancing shall have been, or shall concurrently with the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as initial funding of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed LoansFacilities be, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to complyconsummated.
Appears in 1 contract
Sources: Credit Agreement (Maravai Lifesciences Holdings, Inc.)
Conditions Precedent to Credit Extensions. 4.01 Conditions to Effectiveness of Initial Credit Extensionthis Agreement (Execution Date). The obligation This Agreement shall be effective upon satisfaction (or waiver in accordance with Section 11.01) of the L/C Issuer and each Lender conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make its initial Credit Extension Extensions hereunder is are subject to satisfaction (or waiver in accordance with Section 11.01) of the following conditions precedentprecedent set forth in Section 4.02 and Section 4.03:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) facsimiles (followed promptly by originals) unless otherwise specified, and each properly executed by dated the Execution Date (or, in the case of certificates of governmental officials, a Responsible Officer of recent date before the signing Loan Party (if applicableExecution Date):
(i) executed counterparts of this Agreement, in the number requested by the Administrative Agent;
(ii) the following, each in form and substance satisfactory to the Administrative Agent: a Note executed by each applicable Borrower in favor certificate of the secretary or an assistant secretary of each Lender requesting a Note;
of the Borrower and the Parent Guarantor (iiior the General Partner on behalf of the Parent Guarantor) such certificates certifying as to the incumbency and genuineness of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers the signature of each officer of such party executing Loan Party evidencing Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the authority certificate of each Loan Party to enter into limited partnership or formation of such party and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of incorporation or formation, (B) the limited partnership agreement, limited liability company agreement or other governing document of such party as in effect on the Execution Date, and (C) resolutions duly adopted by the board of directors (or other governing body) of such party authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Agreement and the other Loan Documents to which such Loan Party is a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party it is a party;
(iviii) copies of each Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form Parent Guarantor (or the General Partner on behalf of the Parent Guarantor) stating that all governmental and substance to the Agents, certifying (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no consents, licenses or regulatory approvals are required necessary in connection with execution and delivery of this Agreement by the execution, delivery and performance by any Loan Party Parent Guarantor and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals Borrower shall have been obtained and are be in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis or stating that no such approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been maderequired; and
(xviv) (A) all UCC financing statements certificates evidencing existence and PPSA financing statementsgood standing of each Loan Party, required by Law or reasonably requested issued by the Agents or applicable Governmental Authority of the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereofstate where each is organized.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent Lenders shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information as may be required by regulatory authorities under them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations includingregulations, without limitation, including the Patriot Act.
(l) Since June 8, 2009, no material changes information required by the USA PATRIOT Act and information described in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesSection 11.19. Without limiting the generality of the provisions of the last paragraph of Section 9.029.03, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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 Execution Date specifying its objection thereto. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit Extension, 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 as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or shall notify the Canadian AgentLenders and the Borrower of the Execution Date, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, and such notice shall be deemed to be a representation conclusive and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to complybinding.
Appears in 1 contract
Conditions Precedent to Credit Extensions. Conditions 01Conditions of Initial Credit Extension. Extension The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative : Agent’s 's receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (in each case except for the Acquisition Documents followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):
(ior, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to Agent and each of the Lenders: executed counterparts of this Agreement;
(ii) , all Collateral Documents, the Guaranty, and the Acquisition Documents, in each case sufficient in number for distribution to Agent, each Lender and Borrower; a Note executed by each applicable Borrower in favor of each Lender requesting a Note;
(iii) ; such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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;
(iv) copies of ; such documents and certifications as Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) ; a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, Parties reasonably acceptable to Agent addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth concerning the Domestic Loan Parties and the Loan DocumentsDocuments in form and substance reasonably satisfactory to Agent; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required; a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since December 31, 2005 that has had or could be reasonably expected to have, either individually or in the aggregate, an Acquisition Target Material Adverse Effect, and (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on that there has not occurred a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth material adverse change in the post-Closing Letterfacts and information regarding Borrower or Acquisition Target as represented through May 1, 2006. evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) ; a payoff letter from duly completed Compliance Certificate as of the agent for last day of the lenders fiscal quarter of Borrower most recently ended prior to the Closing Date, signed by a Responsible Officer of Borrower; evidence that all commitments under the (i) Amended and Restated Credit Agreement, dated as of June 30, 2004, among Borrower, Agent and a syndicate of lenders and (ii) Loan and Security Agreement, dated August 18, 2005, between Keurig, Incorporated and Silicon Valley Bank (collectively, the "Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that Agreement") other than the Existing Letter of Credit Agreement has have been or concurrently with the Closing Date is are being terminated, and all obligations outstanding amounts thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, been or concurrently with the Closing Date are being, being released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8other assurances, 2009 relating thereto certificates, documents, consents, reports, appraisals, field audits or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder opinions as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of Section 9.02, for purposes of determining compliance with the conditions specified in this Section 0, each Lender (other than an Agent or the Canadian Agent) 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. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit Extension, 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 as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Issuer, Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan Lender, Arranger or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent reasonably may require, including without limitation environmental reports, audits, appraisals and the Canadian Agent (in accordance with the terms of this Agreement) like related to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to complyParties.
Appears in 1 contract
Sources: Revolving Credit Agreement (Green Mountain Coffee Roasters Inc)
Conditions Precedent to Credit Extensions. 4.01 Conditions of Initial Credit ExtensionEffectiveness TC "4.01 Conditions of Effectiveness" \f C \l "2" \* MERGEFORMAT AUTONF D3_TC. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to This Agreement shall become effective solely upon satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt Agent shall have received from each of the followingCompany, each the L/C Issuer and the Lenders a counterpart of which shall be originals or telecopies or other electronic image scan transmission this Agreement signed on behalf of such party (e.g.and, “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer in the case of the signing Loan Party (if applicable):
(i) executed counterparts of this Agreement;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other actionCompany, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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;
(iv) copies of each Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory Company).
(b) The Administrative Agent shall have received from each Guarantor a counterpart of the Guaranty signed by a Responsible Officer of such Guarantor.
(c) The Administrative Agent shall have received Notes executed by the Company in form and substance favor of each Lender requesting Notes (to the Agents, certifying extent such request has been delivered to the Company at least two (A2) Business Days prior to the Closing Date).
(d) The Administrative Agent shall have received from the secretary or assistant secretary or a Responsible Officer of each Loan Party a certificate dated the Closing Date and certifying:
(i) that attached thereto is a true and complete copy of the conditions specified certificate or articles of incorporation, certificate of formation or other equivalent Organization Documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official or Governmental Authority) of the jurisdiction of its organization,
(ii) that attached thereto is a true and complete copy of a certificate as to the good standing of such Loan Party as of a recent date from such Secretary of State (or other similar official or Governmental Authority),
(iii) that attached thereto is a true and complete copy of the bylaws, limited liability company agreement or equivalent Organization Document of such Loan Party as in Sections ARTICLE IV(oeffect on the Closing Date and at all times since a date prior to the date of the resolutions described in the following clause (iv),
(iv) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (por equivalent governing body) have been satisfiedof such Loan Party, (B) either that (1) no consents, licenses or approvals are required in connection with authorizing the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a partyparty and required hereby and that such resolutions have not been modified, rescinded or (2) that all such consents, licenses and approvals have been obtained amended and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, and
(iiv) the payment of all fees and other amounts due as to the Credit Parties by the Borrowers incumbency and specimen signature of each officer or authorized signatory executing this Agreement or any other Loan Document delivered in connection herewith on the Closing Date as required under the behalf of such Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009Party.
(e) The Administrative Agent shall have receivedreceived favorable opinions of J▇▇▇▇▇ & Block LLP, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with form agreed on or prior to the Loan Parties’ then current practicesClosing Date.
(f) The Lead Borrower or any Subsidiary Administrative Agent shall have entered into received a certificate of a Responsible Officer of the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory Company certifying as to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds satisfaction of the Term Loans conditions set forth in a minimum amount of $125,000,000Sections 4.02(a) and (b).
(g) The Agents Since April 30, 2022 there shall not have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agentsoccurred any Material Adverse Effect.
(h) All necessary consents The Loan Parties shall have (i) paid all accrued and approvals unpaid interest on the revolving loans outstanding under the Existing Credit Agreement to the transactions contemplated hereby shall have been obtainedClosing Date, (ii) prepaid any revolving loans outstanding under the Existing Credit Agreement to the extent necessary to keep the outstanding Revolving Loans ratable with the revised Revolving Commitments as of the Closing Date, and (iii) paid all accrued fees owing to the lenders under the Existing Credit Agreement to the Closing Date.
(i) Upon the reasonable request of any Lender made at least ten (10) days prior to the Closing Date, the Company shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, in each case at least five (5) days prior to the Closing Date.
(j) At least five (5) days prior to the Closing Date, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall deliver to the Administrative Agent and the Lenders a Beneficial Ownership Certification in relation to the Company.
(k) All fees and expenses earned, due and payable to the Administrative Agent, the Arranger or the Lenders required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jl) The Borrowers Unless waived by the Administrative Agent, the Company shall have paid (directly to such counsel if requested by the Administrative Agent) all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent required to be paid, to the extent payable by the Borrowers hereunder and invoiced at least two (2) days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings and required to be paid by the Company (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower Company and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.029.03, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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. .
4.02 Conditions to all Credit Extensions TC "4.02 Conditions to all Credit Extensions" \f C \l "2" \* MERGEFORMAT AUTONF D3_TC. The obligation of each Lender and the L/C Issuer to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan Loans to another Type of Committed Loanthe other Type, or a continuation of LIBO Rate Term SOFR Loans or BA Equivalent Alternative Currency Term Rate Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(oa) The representations and warranties of the Borrowers Company and each other Loan Party contained in Article V V, or which are contained in any other Loan Documentdocument furnished at any time under or in connection herewith, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit Extension, 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 as of such earlier date, and except that for purposes of this Section 04.02, the representations and warranties contained in subsections clauses (a), ) and (b) and (f) of Section 5.01 5.05 shall be deemed to refer to the most recent statements, if any, statements furnished pursuant to clauses (a), (b) and (db), respectively, of Section 06.01.
(pb) No Default shall exist, or would result from from, such proposed Credit Extension or from the application of the proceeds thereof.
(qc) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.
(d) In the case of a Credit Extension to be denominated in an Alternative Currency, such currency remains an Eligible Currency.
(e) If the applicable Borrower is a Designated Borrower, then the conditions of Section 2.17 to the designation of such Borrower as a Designated Borrower shall have been met. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan Loans to another the other Type of Committed Loan or a continuation of LIBO Rate Term SOFR Loans or BA Equivalent Alternative Currency Term Rate Loans) submitted by the Lead a Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o4.02(a) and (pb) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Conditions Precedent to Credit Extensions. Section 4.01 Conditions of to the Initial Credit ExtensionExtension on the Closing Date. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder on the Closing Date is subject to satisfaction or due waiver in accordance with Section 10.01 of each of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent:
(a) The Administrative Agent’s receipt Agent shall have received all of the following, each of which shall be originals or telecopies facsimiles or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) files (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated as of the Closing Date (if applicableor, in the case of certificates of governmental officials, as of a recent date before the Closing Date), and each accompanied by their respective required schedules and other attachments (and set forth thereon shall be all required information with respect to Holdings and its Subsidiaries, giving effect to the Transactions):
(i) executed counterparts of (A) this AgreementAgreement from Holdings, the Borrower, the Administrative Agent, L/C Issuers and the initial Lenders, (B) the Holdings Guaranty from Holdings and the Administrative Agent, (C) the Subsidiary Guaranty from each Loan Party (other than Holdings) and the Administrative Agent, (D) the Intercompany Subordination Agreement and (E) the Perfection Certificate;
(ii) the Security Agreement, duly executed by Holdings, the Borrower and each Subsidiary Guarantor, together with (subject to Schedule 6.16):
(A) certificates, if any, representing the Pledged Interests in the Borrower and, to the extent received by Holdings after Holdings’ use of commercially reasonable efforts to receive such certificates or otherwise without undue burden or expense, each wholly owned Subsidiary other than Immaterial Subsidiaries, accompanied by undated stock powers executed in blank (or stock transfer forms, as applicable) and instruments evidencing the Pledged Debt indorsed in blank (or instrument of transfer, as applicable) shall have been delivered to the Collateral Agent,
(B) copies of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all United States jurisdictions that the Collateral Agent may deem reasonably necessary in order to perfect and protect the Liens on assets of each Loan Party created under the Security Agreement, covering the Collateral described in the Security Agreement, and
(C) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby (subject to the Perfection Exceptions) shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (including receipt of duly executed payoff letters, customary lien searches and UCC-3 termination statements);
(iii) an Intellectual Property Security Agreement, duly executed by the Collateral Agent and each Loan Party that owns intellectual property that is required to be pledged in accordance with the Security Agreement;
(iv) a Note executed by each applicable the Borrower in favor of each Lender requesting a NoteNote reasonably in advance of the Closing Date;
(iiiv) a Committed Loan Notice and a Letter of Credit Application, if applicable, in each case relating to the initial Credit Extension;
(vi) a solvency certificate executed by the chief financial officer or similar officer, director or authorized signatory of Holdings (after giving effect to the Transactions) substantially in the form attached hereto as Exhibit G;
(vii) such certificates of resolutions or other actiondocuments and certifications (including Organization Documents and, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing if applicable, good standing certificates) as the Administrative Agent may reasonably require to evidence (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act of the Loan Parties acting as a Responsible Officer such in connection with this Agreement and the other Loan Documents to which such Loan Party and (B) that Holdings, the Borrower and each Subsidiary Guarantor is a party;
(iv) copies duly organized or formed, and that each of each Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificatesthem is validly existing and, to the extent available applicable, in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualificationgood standing, except to the extent that failure to be so qualify in such jurisdiction qualified could not reasonably be expected to have a Material Adverse Effect;
(vviii) a favorable an opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels special New York counsel to Holdings, the Canadian Loan PartiesBorrower and the Subsidiary Guarantors, addressed to the Canadian Agent and each Canadian LenderSecured Party, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds Administrative Agent; and
(ix) a certificate of a Responsible Officer of the Term Loans Borrower certifying that the condition set forth in a minimum amount of $125,000,000Section 4.01(d)(i)(A), 4.01(e), 4.01(f) and 4.01(g) have been satisfied.
(gb) The Agents Holdings, the Borrower and the other Guarantors shall have received (i) provided the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information reasonably requested in writing at least ten business days prior to the Closing Date by the Arrangers as they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money money-laundering rules and regulations regulations, including, without limitation, the Patriot PATRIOT Act.
(l) Since June 8, 2009and a Beneficial Ownership Certification, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred each case at least three business days prior to the Closing Date.
Date (m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of Section 9.02, for purposes of determining compliance with the conditions specified in this Section 0, each Lender (other than an Agent or the Canadian Agent) 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 shorter period as the Administrative Agent shall otherwise agree).
(c) The Second Lien Facility Documentation required by the terms of the Second Lien Credit Agreement and the First Lien/Second Lien Intercreditor Agreement shall have received notice from such Lender prior been duly executed and delivered by each Loan Party thereto to the proposed Closing Date specifying its objection thereto. Conditions to all Credit Extensions. The obligation Second Lien Administrative Agent and shall be in full force and effect, and substantially contemporaneously with the funding of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loanthe Facilities, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:Second Lien Facility shall be funded.
(od) The (i) (A) the representations and warranties of the Borrowers Borrower and each other Loan Party contained in Article V or any other Loan Document, Document shall be true and correct in all material respects respects; and (orB) the Refinancing shall have been, in or shall concurrently with the case of any representation and warranty qualified by materiality, in all respects) on and as initial funding of the date of such Credit ExtensionFacilities be, 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 as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0consummated.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Sources: First Lien Credit Agreement (ZoomInfo Technologies Inc.)
Conditions Precedent to Credit Extensions. (a) Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(ai) The Administrative Agent’s receipt of the following, each of which shall be originals or originals, telecopies or other electronic image scan transmission (e.g., “pdf” or “tiftif ” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Restatement Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Restatement Date) and each in form and substance satisfactory to the Administrative Agent:
(i1) executed counterparts of this AgreementAgreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii2) a Note executed by each applicable Borrower the Borrowers in favor of each Lender requesting a Note;
(iii3) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing as the Administrative Agent may
(A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to become a party and (B) 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 become a party;
(iv4) copies of each Loan Party’s certificate Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v5) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇of B▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels counsel to the Canadian Loan Parties, each addressed to the Canadian Agent Agents, the L/C Issuer and each Canadian Lender, as to customary such matters concerning the Canadian Loan Parties and the Loan DocumentsDocuments as the Administrative Agent may reasonably request;
(vi6) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, Borrower certifying (A) that the conditions specified in Sections ARTICLE IV(o4(b)(i) and (pii) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to the Solvency of the Loan Parties as of the Restatement Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii7) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, Agents required under the Loan Documents have been obtained and are in effect;
(ix) 8) a payoff letter from the agent for the lenders under the Existing Credit Term Loan Agreement reasonably satisfactory in form and substance to the Agents Administrative Agent evidencing that the Existing Credit Term Loan Agreement has been or concurrently with the Closing Restatement Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein)full, and all Liens securing obligations under the Existing Credit Term Loan Agreement have been, been or concurrently with the Closing Restatement Date are being, being released;
(x9) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement)thereunder, together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement)Parties;
(xi10) all other Loan Documents set forth on Schedule 4.01(a)(xi) heretoDocuments, each duly executed by the applicable Loan Parties;
(xii11) the Intercreditor Agreement;
(A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Collateral Agent of all Inventory of the Borrowers, the results of which are satisfactory to the Collateral Agent and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv12) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents Agent (in each case dated as of a date reasonably satisfactory to the Co-Collateral AgentsAgent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases satisfactory to the Collateral Agent are being tendered concurrently with the initial such extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents Agent for the delivery of such termination statements and releases, satisfactions and discharges releases have been made; and;
(xv13) (A) all UCC financing statements documents and PPSA instruments, including Uniform Commercial Code financing statements, required by Law law or reasonably requested by the Agents or the Canadian Agent, as applicable, Collateral Agent to be filed, registered or recorded to create, create or perfect or protect the first priority Liens intended to be created under the Loan DocumentsDocuments and all such documents and instruments shall have been so filed, and registered or recorded to the satisfaction of the Collateral Agent, (B) the DDA Notifications, Credit Card Notifications Notifications, and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 6(m) hereof, (C) control agreements with respect to the Loan Parties’ securities and investment accounts, and (D) Collateral Access Agreements as required by the Collateral Agent; and
(14) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(bii) After giving effect to (i) the first funding under the Loans (if any) on the Closing DateLoans, (ii) the payment of all fees and other amounts due any charges to the Credit Parties by Loan Account made in connection with the Borrowers on establishment of the Closing Date as required under the Loan Documents, credit facility contemplated hereby and (iii) all Letters of Credit to be issued on the Closing Date(or deemed issued) at, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Dateor immediately subsequent to, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of salessuch establishment, Domestic Revolving Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,00050,000,000.
(ciii) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Restatement Date, relating to the month period ended on June 30as of May 19, 20092018, and executed by a Responsible Officer of the Lead Borrower or the ParentBorrower.
(div) The Co-Collateral Agents Administrative Agent shall be reasonably satisfied with that any financial statements delivered to it fairly present the results business and financial condition of the inventory appraisal conducted by Great American Group dated April, 2009Loan Parties and that there has been no Material Adverse Effect since the date of the most recent financial information delivered to the Administrative Agent.
(ev) The Administrative Agent shall have received, received and be satisfied with (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with on the Fiscal Quarter ending July 31, 2009 Restatement Date and ending with the end of the Fiscal Quarter ending October 31April 30, 20102019, which shall include an a Revolving Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practicespractices and (b) such other information (financial or otherwise) reasonably requested by the Administrative Agent.
(fvi) The Lead Borrower There shall not be pending any litigation or any Subsidiary shall other proceeding, the result of which, either individually or in the aggregate, could reasonably be expected to have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000Material Adverse Effect.
(gvii) The Agents There shall not have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies occurred any default of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agentsany Material Contract of any Loan Party.
(hviii) All necessary consents and approvals to The consummation of the transactions contemplated hereby shall have been obtainednot violate any Applicable Law or any Organization Document.
(iix) All fees required to be paid by to the Borrowers to any of Administrative Agent, the Agents or the Arrangers on or before the Closing Date shall have been paid in full, Term Loan Agent and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Restatement Date shall have been paid in full.
(jx) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents Administrative Agent and Arrangers the Term Loan Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Restatement Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ the Administrative Agent’s or the Term Loan Agent’s, as applicable, reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it such Person through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrowers, the Administrative Agent and any Agent or Arrangerthe Term Loan Agent).
(kxi) The Agents Administrative Agent and the Lenders shall have received all an executed Certificate of Beneficial Ownership with respect to each Borrower and such other documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations includingregulations, including without limitation, limitation the Patriot Act, in each case, the results of which are reasonably satisfactory to the Administrative Agent and the Lenders.
(lxii) Since June 8, 2009, no No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Restatement Date.
(mxiii) intentionally omitted.
(n) The Closing Date There shall not have occurred on any disruption or before July 31material adverse change in the United States financial or capital markets in general that has had, 2009. The Administrative Agent shall notify in the Lead Borrower and the Lenders reasonable opinion of the Closing DateAdministrative Agent, and such notice shall be conclusive and binding a material adverse effect on the Loan Partiesmarket for loan syndications or adversely affecting the syndication of the Loans. Without limiting the generality of the provisions of Section 9.029(d), for purposes of determining compliance with the conditions specified in this Section 04(a), each Lender (other than an Agent or the Canadian Agent) 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 Restatement Date specifying its objection thereto. .
(b) Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed LIBO Rate Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(oi) The representations and warranties of the Borrowers and each other Loan Party contained in Article V 5 or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit Extension, except (i) 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 as of such earlier date, (ii) to the extent that such representations and except that warranties qualified by materiality, in which case they shall be true and correct in all respects, and (iii) for purposes of this Section 04(b), the representations and warranties contained in subsections (aA), (bB) and (fe) of Section 5.01 5(e) shall be deemed to refer to the most recent statements, if any, statements furnished pursuant to clauses (ai), (bii) and (d), respectively, of Section 06(a).
(pii) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(qiii) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.
(iv) No event or circumstance which could reasonably be expected to result in a Material Adverse Effect shall have occurred.
(v) No Overadvance shall result from such Credit Extension. Each Request for a Credit Extension (other than a Committed LIBO Rate Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o4(b)(i) and (pii) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 4(b) are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed LoansLoans and the L/C Issuer to issue Letters of Credit, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with issued, which are requested by the provisions of this Agreement, Lead Borrower and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV4, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided thatprovided, however, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV 4 on any future occasion or a waiver of any rights of or the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Sources: Credit Agreement (Sportsman's Warehouse Holdings, Inc.)
Conditions Precedent to Credit Extensions. Conditions of Initial Credit Extension. The obligation of the each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) : The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):
(ior, 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: executed counterparts of this Agreement;
(ii) Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower; a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
; the Post Closing Agreement, duly executed by each of the parties thereto; a reaffirmation of the Security Agreement, duly executed by each Loan Party, together with: 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 to the extent not currently held by the Administrative Agent, proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement, completed requests for information, dated on or before the date of the initial Credit Extension, listing all effective financing statements filed in the jurisdictions referred to in clause (iiiB) above that name any Loan Party as debtor, together with copies of such other financing statements, evidence of the completion of all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby including the delivery of the certificates of title for applicable equipment as required by the Security Agreement, the Account Control Agreements and the Securities Account Control Agreement (in each case, as defined in the Security Agreement) required pursuant to the Security Agreement to the extent not in effect and duly executed by the appropriate parties (except to the extent otherwise provided in the Post Closing Agreement), and evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements); 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 as amended, the “Intellectual Property Security Agreement”), duly executed by each Loan Party, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken; such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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) copies of ; such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) that the Borrower and a certificate of each Guarantor is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s 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 qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) ; a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels counsel to the Canadian Loan Parties, addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary the matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) Documents as the Required Lenders may reasonably request; a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, Borrower certifying (A) that the conditions specified in Sections ARTICLE IV(o4.02(a) and (pb) have been satisfied, that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (BC) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against such Loan Party amount of Indebtedness under the Loan Documents the Borrower is permitted to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, incur under the Senior Notes Documents as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note IndentureDate;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of Section 9.02, for purposes of determining compliance with the conditions specified in this Section 0, each Lender (other than an Agent or the Canadian Agent) 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. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit Extension, 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 as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Conditions Precedent to Credit Extensions. 4.01 Conditions of to the Initial Credit ExtensionBorrowing on the Closing Date. The obligation obligations of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is are subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedentprecedent on the Closing Date:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or originals, telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) .pdfs (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Parties which are party thereto, each dated the Closing Date (if applicableor, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of this AgreementAgreement bearing the signatures of each of the Borrower, the Administrative Agent and each Lender with commitments to make Loans as designated on Schedule 2.01;
(ii) a an original Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer on behalf of such Loan Party in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) copies such documents and certifications as the Administrative Agent may reasonably require to evidence that each of each the Loan Party’s certificate or articles of incorporation and bylaws Parties (or equivalent or comparable constitutive documents other than Aspen Youth, Inc. with respect to any non-U.S. jurisdictiongood standing) is duly organized or formed, validly existing and a certificate in good standing in its jurisdiction of organization, including, certified copies of the Organization Documents of the Loan Parties and certificates of good standing (where applicable, or such other customary functionally equivalent certificates, to of the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse EffectParties;
(v) a favorable opinion opinions of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ US LLP, counsels counsel to the Canadian Loan Borrower and the Guarantors organized in Delaware, California, Florida, Massachusetts, Texas, Pennsylvania and Virginia, in each case, in form and substance reasonably satisfactory to the Administrative Agent and the Secured Parties, addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) copies of the financial statements referred to in Section 5.05(a) and a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying Borrower (A) certifying that the conditions specified in Sections ARTICLE IV(o4.02(a) and (pb) have been satisfied, satisfied and (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect certifying to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, condition set forth in clauses (e) and (Df) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenturebelow;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, insurance certificates or other evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effectfull force, including in either case evidence that the Administrative Agent, on behalf of the Lenders, is an additional insured or lender’s loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral;
(viii) [reserved];
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released[reserved];
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement)[reserved];
(xi) all copies of UCC financing statements in proper form for filing naming the Borrower and each other Loan Documents set forth on Schedule 4.01(a)(xi) heretoParty as the debtor and the Administrative Agent as the secured party, each duly executed by which such UCC financing statements have been delivered for filing under the applicable Loan PartiesUCC of all jurisdictions as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the first priority security interest of the Administrative Agent pursuant to the Security Agreement;
(xii) evidence that all other action that the Intercreditor Agreement;
(A) a written report regarding Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the results of a commercial finance examination first priority liens and security interests created under the Collateral Documents in accordance with the requirements of the Loan PartiesCollateral Documents has been taken (including, which shall be reasonably satisfactory to the Co-Collateral Agents without limitation, receipt of duly executed payoff letters and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which UCC-3 termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been madestatements); and
(xvxiii) (A) all UCC financing statements such other assurances, certificates, documents, consents and PPSA financing statementswaivers, required by Law estoppel certificates, or reasonably requested by opinions as the Agents Administrative Agent, the L/C Issuer, the Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have receivedreceived certification, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and receivedAdministrative Agent, or substantially simultaneously with as to the initial Credit Extension under this Agreement shall receive, gross proceeds solvency (as described in Section 5.24) of the Term Loans in Borrower, individually, and the Loan Parties, taken as a minimum amount whole from the chief financial officer of $125,000,000the Borrower.
(gc) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto Any fees and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees expenses required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid paid, including those fees and expenses set forth in full, the Engagement Letter and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullAgent Fee Letter.
(jd) The Borrowers Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents Administrative Agent and the Arrangers to the extent payable by the Borrowers hereunder and invoiced at least three Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by of counsel to the Borrowers hereunder Administrative Agent and the Arrangers as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements of counsel to the Administrative Agent incurred or to be incurred by it through the closing proceedings to the extent invoiced at least three Business Days prior to or on the Closing Date (provided provided, that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or Arranger)the Administrative Agent) .
(ke) Since December 31, 2024, no changes or developments shall have occurred that either individually or in the aggregate constitutes or has had or could reasonably be expected to constitute or have a Material Adverse Effect.
(f) The Agents representations and warranties of the Borrower and each other Loan Party contained in ARTICLE V or any other Loan Document shall be true and correct in all material respects (or, if any such representation or warranty is by its terms qualified by concepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects), 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 (or, if any such representation or warranty is by its terms qualified by concepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects) as of such earlier date.
(g) Prior to, or substantially concurrently with, the borrowing of the Loans on the Closing Date, the Borrower shall have received repaid all outstanding principal, together with all accrued and unpaid interest, in respect of Indebtedness under and as defined in the Existing Credit Agreement and permanently terminated all commitments thereunder.
(h) Upon the reasonable request of any Lender made at least 5 days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information required by regulatory authorities under so requested in connection with applicable “know your customer” and anti-money money-laundering rules and regulations regulations, including, without limitation, the Patriot PATRIOT Act.
, in each case at least 2 days prior to the Closing Date and (ly) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred at least 5 days prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date , any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have occurred on or before July 31delivered, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Dateto each Lender that so requests, and a Beneficial Ownership Certification in relation to such notice shall be conclusive and binding on the Loan PartiesParty. Without limiting the generality of the provisions of Section 9.029.04, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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. .
4.02 Conditions to all Credit Extensions. The Other than as may be expressly set forth in Section 2.16 in connection with the establishment of any Incremental Facilities, the obligation of each Lender and the L/C Issuer to honor any Request for Credit Extension (other than a Committed Loan Notice Request for Credit Extension requesting only a conversion of a Committed Loan Loans to another Type of Committed Loanthe other Type, or a continuation of LIBO Rate Loans or BA Equivalent Term SOFR Loans, but including, for the avoidance of doubt, any Request for Credit Extension requesting a Borrowing on the Closing Date) and of each L/C Issuer to issue each Letter of Credit is subject to the satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent:
(oa) The representations and warranties of the Borrowers Borrower and each other Loan Party contained in Article V or any other Loan Document, Document shall be true and correct in all material respects (or, in the case of if any such representation and or warranty is by its terms qualified by materialityconcepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects) on and as of the date of such Credit Extension, (i) 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 (or, if any such representation or warranty is by its terms qualified by concepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects) as of such earlier datedate and (ii) except that, and except that for purposes of this Section 04.02, the representations and warranties contained in subsections subsection (a), (b) and (f) of Section 5.01 5.05 shall be deemed to refer to the most recent statements, if any, statements furnished pursuant to clauses subsections (a), (b) and (db), respectively, of Section 06.01.
(pb) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(qc) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan Loans to another the other Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Term SOFR Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o4.02(a) and (p4.02(b) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Conditions Precedent to Credit Extensions. Conditions of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension Loans hereunder is subject to satisfaction of the following conditions precedentprecedent prior to the Back Stop Date:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party (if applicable):Party, each dated a date on or 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 this the Collateral Agreement from the Borrower and each Guarantor together with (w) Uniform Commercial Code financing statements for the Borrower and each Guarantor in appropriate form for filing with the Secretary of State of each applicable jurisdiction and (x) stock certificates and stock powers in favor of the Administrative Agent with respect to all certificated Equity Interests pledged thereunder to the extent required by the Collateral Agreement, (y) all other agreements and instruments required to be delivered in order to provide the Administrative Agent, or perfect the Administrative Agent’s security interest in, the Collateral described in Annex I to the Commitment Letter, (z) an executed Mortgage in appropriate form for recording with respect to each Mortgaged Property (and any surveys, title insurance and, to the extent required by law, flood insurance, requested by the Administrative Agent with respect to such Mortgage Property); provided that, to the extent 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, the delivery 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 6.11;
(ii) lien searches with respect to each Loan Party in such jurisdictions as may be reasonably requested by the Administrative Agent;
(iii) a copy of the Offer Document and the initial press release announcing the Offer;
(iv) a Note executed by each applicable the Borrower in favor of each Lender requesting a Note;
(iiiv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party and (B) 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;
(ivvi) copies of each Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) for each Loan Party from such Loan Party’s its jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effectorganization;
(vvii) a certificate signed by the Chief Financial Officer of the Borrower certifying as to the solvency of the Borrower and its Subsidiaries (on a consolidated basis) after giving effect to the Transactions and the incurrence of all indebtedness related thereto;
(viii) a favorable opinion of (x) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Domestic Loan Parties, and local counsel to the Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser ▇▇▇▇▇▇ Casgrain LLP and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due The Acquisition Agreement shall have not been amended or modified in any respect that is materially adverse to the Credit Parties Lenders without the consent of the Lead Arrangers (which consent shall not be unreasonably withheld). The conditions to the completion of the Offer (as defined in the Acquisition Agreement) set forth in the Acquisition Agreement shall have been satisfied in all material respects in accordance with the Acquisition Agreement without any waiver by the Borrowers Borrower that is materially adverse to the Lenders unless the Lead Arrangers shall have consented to such waiver, which consent shall not be unreasonably withheld (it is understood and agreed that any amendments or waivers to the conditions numbered 8 (material adverse change) and 9 (no materially inaccurate disclosures) shall be deemed materially adverse to the Lenders). Notwithstanding the foregoing, this condition shall be deemed to be satisfied on the Closing Date if the terms of the Acquisition Agreement (as required under it may have been amended as permitted above) do not permit the Loan Documents, (iii) all Letters of Credit Borrower to be issued withdraw the Offer on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000such date.
(c) The Administrative Agent and the Canadian Agent Offer shall have received a Borrowing Base Certificate dated been accepted to such an extent that the Closing Date, relating to Borrower becomes the month ended on June 30, 2009, and executed by a Responsible Officer owner of shares representing more than 90% of the Lead Borrower or outstanding shares of the ParentTarget on a fully diluted basis.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results All accrued fees and expenses of the inventory appraisal conducted by Great American Group dated April, 2009Administrative Agent and the 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.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of Section 9.02, for purposes of determining compliance with the conditions specified in this Section 0, each Lender (other than an Agent or the Canadian Agent) 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. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, Major Representations shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit ExtensionClosing 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 as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and .
(f) of Section 5.01 No Major Default shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall existcontinuing, or would result from such proposed Credit Extension Loan or from the application of the proceeds thereof.
(qg) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension Committed Loan Notice in accordance with the requirements hereof. Each Request for a Credit Extension Any Committed Loan Notice (other than a Committed Loan Notice requesting only a conversion of a Committed Loan Loans to another the other Type of Committed Loan or a continuation of LIBO Eurodollar Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(oclauses (b), (c), (e) and (pf) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to complyClosing Date.
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