Conditions Precedent to the Closing Date. The Closing Date, the obligation of each Lender to make the initial Credit Extensions of Term A Loans (other than Term A-2 Loans), Term B Loans and Revolving Credit Loans, and of the L/C Issuer to issue Letters of Credit, shall, in each case, be subject to Section 11.25 and the following conditions: (a) The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and each in form and substance reasonably satisfactory to the Applicable Administrative Agent and its legal counsel: (i) a Note executed by each applicable Borrower in favor of each Lender that has requested a Note; (ii) each document necessary to satisfy the Collateral and Guaranty Requirements with respect to the Loan Parties and assets thereof in existence as of the Closing Date, including those documents listed on Schedule 4.02(a)(ii) under the caption “Closing Date Matters”, together with any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Applicable Administrative Agent to vest in the Applicable Administrative Agent valid and subsisting first priority perfected Liens (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge Agreement)) on the properties purported to be subject to the Collateral Documents as of the Closing Date, enforceable against all third parties in accordance with their terms; provided that to the extent that after the Effective Date, Holdings or SpinCo or any of their respective Subsidiaries create or acquire any assets as to which a Lien is required to be created or perfected pursuant to the Collateral and Guaranty Requirements, Holdings shall promptly notify the Applicable Administrative Agent in reasonable detail in writing thereof, and the Applicable Administrative Agent may supplement Schedule 4.02(a)(ii), under the caption “Closing Date Matters”, consistent with the Collateral and Guaranty Requirements, to include any agreements, documents or actions of the types specified in the first parenthetical of the last paragraph of this Section 4.02; (iii) a certificate of a Responsible Officer of each Loan Party certifying as to the Organization Documents thereof together with copies of the Organization Documents of such Loan Party annexed thereto; (iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Applicable Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; (v) an opinion from (A) ▇▇▇▇▇▇ Price P.C., special New York counsel to the Loans Parties, (B) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Gervais LLP, special Ontario, British Columbia and Alberta counsel to the Loan Parties, and (C) local or other counsel in each of the jurisdictions listed on Schedule 4.02(a)(v) under the heading “Closing Date Opinions”, in each case as reasonably requested by the Applicable Administrative Agent, and, in the case of each of clauses (A) and (B), each in substantially the form previously provided to the Applicable Administrative Agent with such changes as are reasonably satisfactory to the Applicable Administrative Agent or as may arise from any changes in applicable law and, in the case of clause (C), in form and substance reasonably satisfactory to the Administrative Agent and the Lenders (it being understood that the Lenders shall be deemed to be satisfied with any such opinion if it is provided to them at least three (3) days prior to the Closing Date and if the Required Lenders shall not have objected thereto prior to the Closing Date); (vi) a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transaction, from the chief financial officer of Holdings; (vii) a certificate attesting to the compliance with clauses (b), (c), (d), (e), (k), (m), (n), (o) and (q) of this Section 4.02 on the Closing Date from a Responsible Officer of Holdings; (viii) a Committed Loan Notice pursuant to Section 2.02 other than with respect to the Term A-2 Loans; (ix) an Officer’s Certificate (as defined in the Existing Senior Subordinated Notes Indenture) certifying that the Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness under this Agreement on the Closing Date does not violate the Existing Senior Subordinated Notes Indenture and attaching thereto a copy of any notice or certificate delivered to the trustee under the Existing Senor Subordinated Notes Indenture in connection with such Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness; provided that for purposes of such certification 100% of the Commitments shall be deemed to have been borrowed on the Closing Date; and (x) a counterpart of each of (i) the U.S. Perfection Certificate (as defined in the U.S. Security Agreement), executed by Holdings and each other U.S. Loan Party party thereto, (ii) the Canadian Perfection Certificate (as defined in the applicable Canadian Security Agreement), executed by each Canadian Subsidiary of Holdings and SpinCo. (b) All fees and expenses required to be paid and invoiced on or before the Closing Date shall have been, or concurrently with the closing of the Transaction shall be, paid in full in cash. (c) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Refinancing shall have been consummated in full with all Liens in favor of the existing lenders being unconditionally released; the Applicable Administrative Agent shall have received a “pay-off” letter in form and substance reasonably satisfactory to the Applicable Administrative Agent with respect to all debt being refinanced in the Refinancing; and the Applicable Administrative Agent shall have received from any Person holding any Lien securing any such debt, such UCC and/or PPSA termination statements, mortgage releases, releases of assignments of leases and rents, releases of security interests in intellectual property and other instruments, in each case in proper form for recording, as the Applicable Administrative Agent shall have reasonably requested to release and terminate of record the Liens securing such debt. (d) (i) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Contribution, the Merger and the Transaction shall have been consummated in accordance with the Merger Agreement, the Separation Agreement and this Agreement and in the sequence set forth in Schedule 4.01(c)(i); provided that no amendment, modification or waiver of any term of the Merger Agreement or the Separation Agreement (other than any such amendment, modification or waiver that is not materially adverse to the interests of the Lenders) shall be made or granted, as the case may be, without the prior written consent of the Arrangers (not to be unreasonably withheld or delayed) (it being understood that any change greater than 10.0% (including any price decrease greater than 10.0%) of the original consideration payable pursuant to the Merger Agreement in effect as of the date hereof will be deemed to be materially adverse to the interests of the Lenders and will require the prior written consent of the Arrangers); and
Appears in 1 contract
Sources: Credit Agreement (Acco Brands Corp)
Conditions Precedent to the Closing Date. The occurrence of the Closing Date, Date and the obligation effectiveness of this Agreement are subject to the prior satisfaction of each Lender to make the initial Credit Extensions of Term A Loans (other than Term A-2 Loans), Term B Loans and Revolving Credit Loans, and of the L/C Issuer to issue Letters of Credit, shall, following conditions (unless waived in each case, be subject to Section 11.25 writing by Lender in its sole and the following conditions:absolute discretion):
(a) The Administrative Agent’s receipt Each representation and warranty set forth in Section 4.1 is true and correct in all respects on the Closing Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all respects as of such earlier date).
(b) No Default or Event of Default shall have occurred and be continuing.
(c) Delivery to Lender of a copy of one or more resolutions or other authorizations of each Borrower, certified by a Responsible Officer of such Borrower as being in full force and effect on the Closing Date, authorizing the execution, delivery and performance of this Agreement and the other Operative Documents (to the extent such documents are to be executed as of the followingClosing Date) and any instruments or agreements required hereunder or thereunder to which Borrowers are a party.
(d) Delivery to Lender of a certificate, in the form of Exhibit D-2, or otherwise in form and substance satisfactory to Lender from each Borrower, signed by an authorized Responsible Officer of such Borrower and dated as of the Closing Date, as to, among other items, the incumbency of the natural persons authorized to execute and deliver this Agreement and the other Financing Documents and any instruments or agreements required hereunder or thereunder to which such Borrower is a party.
(e) Delivery to Lender of a copy of the certificate of formation of each Borrower, certified by the Secretary of State of the State of Delaware, a copy of the operating agreement of such Borrower and good standing certificate issued by the Secretary of State of Delaware, certifying that the Borrower is in good standing.
(f) No material action, suit, proceeding or investigation shall have been instituted or threatened against either Borrower.
(g) All limited liability company proceedings and documentation of each Borrower relating to the transactions contemplated by this Agreement shall be satisfactory in form and substance to Lender, and Lender shall have received all information and copies of all documents, including records of limited liability company proceedings and copies of any approval by any Governmental Authority required in connection with any transaction herein contemplated, such documents where appropriate to be certified by proper limited liability company officers or Governmental Authorities.
(h) Delivery to Lender of executed originals of each Financing Document contemplated or required to be effective as of the Closing Date, which shall be satisfactory in form and substance to Lender, and shall have been duly authorized, executed and delivered by the parties thereto (to the extent such documents are required to be executed as of the Closing Date), including, without limitation, amended and restated Mortgages on all Sites upon which Existing Projects are located. All Liens contemplated by the Collateral Documents to be created and perfected in favor of Lender as of the Closing Date shall have been perfected, recorded and filed in the appropriate jurisdictions. Closing Date.
(i) Lender shall have received Borrowers’ Closing Certificate, dated as of the
(j) Subject to the provisions of Section 5.21 hereof, delivery to Lender of a legal opinion (each of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer dated as of the signing Loan Party Closing Date) of:
(i) ▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel to Borrowers, in a form acceptable to Lender, and addressing such matters as Lender may request; and
(ii) Local counsel for Borrowers, in a form acceptable to Lender, and addressing such matters as Lender may request in each jurisdiction in which an Existing Project is located.
(k) Lender shall have received a UCC search report of a recent date before the Closing Date for each of the jurisdictions in which the UCC-1 financing statements are intended to be filed in respect of the Collateral being secured as of the Closing Date, showing that upon due filing (assuming such filing occurred on the date of such respective reports), the security interests created under the relevant Collateral Documents will have a first-priority interest over all other financing statements in respect of such Collateral, subject to Permitted Liens that, pursuant to the applicable Legal Requirements, are entitled to a higher priority than the Lien of Lender.
(l) All amounts (including, but not limited to, the fees pursuant to Section 2.10) required to be paid to or deposited with Lender hereunder and its counsel and consultants, and all taxes, fees and other costs payable in connection with the execution, delivery and filing of the documents and instruments required to be filed as a condition precedent pursuant to this Section 3.1, shall have been paid in full (or in connection with such taxes, fees (other than fees payable to Lender) and costs, Borrowers shall have made other arrangements acceptable to Lender in its sole discretion).
(m) Lender shall have received: (i) Borrowers’ unaudited balance sheet at January 31, 2013, and the related statements of income and cash flows of Borrowers for the four fiscal quarters then ended; (ii) Borrowers’ most recent pro forma financial information in form and substance acceptable to Lender and (iii) such other information regarding Borrowers’ corporate structure, capital structure, other indebtedness and material accounts as Lender may request, in each case in form and substance satisfactory to Lender.
(n) Lender shall have received appraisals of the Existing Projects, in each case in form and substance satisfactory and certified to Lender and prepared by an appraiser or appraisers acceptable to Lender, demonstrating a fair market value for the real estate and other tangible assets constituting the Existing Projects in an aggregate amount of not less than One Hundred Sixteen Million Six Hundred Sixty Six Thousand Six Hundred Sixty Seven Dollars ($116,666,667).
(o) Lender shall have received all such documentation and information requested by Lender that is necessary (including the name and addresses of Borrower, taxpayer identification forms, name of officers/board members, documents and copies of government-issued identification of Borrowers or owners thereof) for Lender to identify Borrowers in accordance with the requirements of the Patriot Act (including the “know your customer” and similar regulations thereunder).
(p) No Material Adverse Change with respect to Borrowers has occurred.
(q) Concurrently with the making of the Term Loan, (i) Lodging Properties shall have purchased pursuant to the Unit Purchase Agreement (no material provision of which shall have been amended or otherwise modified or waived without the prior written consent of Lender) and shall have become the owner, free and clear of all Liens other than Permitted Liens, of all of the issued and outstanding membership units of Lodging Enterprises, (ii) each of Borrower and the Sellers shall have fully performed all of the obligations to be performed by it under the Acquisition Documents (as so amended, modified or waived), (iii) the Lodging Enterprises Transaction, including all of the terms and conditions thereof, shall have been duly authorized by the Board of Directors and (if required by applicable law) the shareholders, members or partners of the parties to the Acquisition Documents and all Acquisition Documents shall have been duly executed and delivered by the parties thereto and shall be in full force and effect in all material respects, (iv) the representations and warranties set forth in the Acquisition Documents shall be true and correct in all material respects as if made on and as of the Closing Date, (v) each of the conditions precedent to the obligations of each of the parties to the Acquisition Documents (as so amended, modified or waived by Lodging Properties as permitted in subsection (q)(i)) to consummate the Lodging Enterprises Transaction as set forth in the Acquisition Documents shall have been satisfied or waived with the consent of Lender, and the Lodging Enterprises Transaction shall have been consummated in accordance with all applicable law and the Acquisition Documents, (vi) Lender shall have received evidence reasonably satisfactory to it as to the foregoing, as to the receipt by all parties to the Acquisition Documents of all necessary regulatory, creditor, lessor, and other third- party approvals and as to material compliance with all laws applicable to any of such parties, (vii) the Lodging Enterprises Transaction shall be consummated substantially in accordance with the Acquisition Documents and (viii) indefeasible repayment in full of the Subordinated Debt.
(r) Concurrently with the making of the Term Loan, the Existing Projects shall be transferred from Lodging Enterprises to Lodging Properties and Lodging Properties shall lease the Existing Projects to Lodging Enterprises, all pursuant to instruments of transfer and leases in form and substance reasonably satisfactory to Lender; provided, however, the Applicable Administrative Agent and its legal counsel:
(i) a Note executed by each applicable Borrower in favor of each Lender that has requested a Note;
(ii) each document necessary to satisfy the Collateral and Guaranty Requirements with respect to the Loan Parties and assets thereof in existence as of the Closing Date, including those documents listed on Schedule 4.02(a)(ii) under the caption “Closing Date Matters”, together with any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Applicable Administrative Agent to vest in the Applicable Administrative Agent valid and subsisting first priority perfected Liens (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge Agreement)) on the properties purported to be subject to the Collateral Documents as of the Closing Date, enforceable against all third parties in accordance with their terms; provided that to the extent that after the Effective Date, Holdings or SpinCo or any of their respective Subsidiaries create or acquire any assets as to which a Lien is required to be created or perfected pursuant to the Collateral and Guaranty Requirements, Holdings shall promptly notify the Applicable Administrative Agent in reasonable detail in writing thereof, and the Applicable Administrative Agent may supplement Schedule 4.02(a)(ii), under the caption “Closing Date Matters”, consistent with the Collateral and Guaranty Requirements, to include any agreements, documents or actions of the types specified in the first parenthetical of the last paragraph of this Section 4.02;
(iii) a certificate of a Responsible Officer of each Loan Party certifying as to the Organization Documents thereof together with copies of the Organization Documents of such Loan Party annexed thereto;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Applicable Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(v) an opinion from (A) ▇▇▇Existing Project located at ▇▇▇ Price P.C., special New York counsel to the Loans Parties, (B) ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ Gervais LLP▇▇▇▇, special Ontario, British Columbia and Alberta counsel ▇▇▇▇▇▇▇▇ will not be transferred to the Loan PartiesLodging Properties, and will remain owned by Lodging Enterprises.
(Cs) local Borrowers shall have received an equity contribution in an amount of no less than Sixty Five Million Dollars ($65,000,000) in connection with the Lodging Enterprises Transaction.
(t) Lender shall have received a certified copy of an employment contract by and between TR Lodging Enterprises Inc. and [Redacted – name of individual].
(u) Lender shall have entered into participation agreements or similar undertakings satisfactory to Lender with other counsel in each of the jurisdictions listed on Schedule 4.02(a)(v) under the heading “Closing Date Opinions”, in each case as reasonably requested financial institutions selected by the Applicable Administrative Agent, and, Lender pursuant to which such institutions shall commit to purchase participations in the case Loans in an aggregate principal amount of not less than Fifty Five Million Dollars ($55,000,000) on the Closing Date.
(v) Certificates of each Borrower’s insurance evidencing the insurance required by Section 5.14 in form and substance acceptable to Lender.
(w) A lender’s policy of clauses title insurance insuring Lenders Lien on each Existing Project issued by a national title company reasonably acceptable to Lender (Athe “Title Company”) in an amount not less than the Project Appraised Value of such Existing Project (or such other amount approved by Lender in its sole discretion) in form and (B)substance acceptable to, each in substantially the form previously provided to the Applicable Administrative Agent with and containing such changes as are reasonably satisfactory to the Applicable Administrative Agent or endorsements as may arise from any changes be required by, Lender in applicable law andits sole discretion, provided, that, such title policies may be limited by a “tie-in” or “aggregation” endorsement in the case amount of clause $70,000,000.
(C)x) Intentionally omitted.
(y) Such other documents as Lender shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders (it being understood Lender, if Lender has a reasonable concern that the Lenders shall be deemed to be satisfied with any such opinion if it is provided to them at least three (3) days prior to the Closing Date and if the Required Lenders shall not have objected thereto prior to the Closing Date);
(vi) a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transaction, from the chief financial officer of Holdings;
(vii) a certificate attesting to the compliance with clauses (b), (c), (d), (e), (k), (m), (n), (o) and (q) of condition precedent in this Section 4.02 on the Closing Date from 3.1 has not been satisfied, including a Responsible Officer of Holdings;
(viii) a Committed Loan Notice pursuant to Section 2.02 other than with respect to the Term A-2 Loans;
(ix) an Officer’s Certificate (as defined in the Existing Senior Subordinated Notes Indenture) certifying that the Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness under this Agreement on the Closing Date does not violate the Existing Senior Subordinated Notes Indenture and attaching thereto a copy breach of any notice covenant or certificate delivered to the trustee under the Existing Senor Subordinated Notes Indenture representation and warranty in connection with such Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness; provided that for purposes of such certification 100% of the Commitments shall be deemed to have been borrowed on the Closing Date; and
(x) a counterpart of each of (i) the U.S. Perfection Certificate (as defined in the U.S. Security this Agreement), executed by Holdings and each other U.S. Loan Party party thereto, (ii) the Canadian Perfection Certificate (as defined in the applicable Canadian Security Agreement), executed by each Canadian Subsidiary of Holdings and SpinCo.
(b) All fees and expenses required to be paid and invoiced on or before the Closing Date shall have been, or concurrently with the closing of the Transaction shall be, paid in full in cash.
(c) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Refinancing shall have been consummated in full with all Liens in favor of the existing lenders being unconditionally released; the Applicable Administrative Agent shall have received a “pay-off” letter in form and substance reasonably satisfactory to the Applicable Administrative Agent with respect to all debt being refinanced in the Refinancing; and the Applicable Administrative Agent shall have received from any Person holding any Lien securing any such debt, such UCC and/or PPSA termination statements, mortgage releases, releases of assignments of leases and rents, releases of security interests in intellectual property and other instruments, in each case in proper form for recording, as the Applicable Administrative Agent shall have reasonably requested to release and terminate of record the Liens securing such debt.
(d) (i) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Contribution, the Merger and the Transaction shall have been consummated in accordance with the Merger Agreement, the Separation Agreement and this Agreement and in the sequence set forth in Schedule 4.01(c)(i); provided that no amendment, modification or waiver of any term of the Merger Agreement or the Separation Agreement (other than any such amendment, modification or waiver that is not materially adverse to the interests of the Lenders) shall be made or granted, as the case may be, without the prior written consent of the Arrangers (not to be unreasonably withheld or delayed) (it being understood that any change greater than 10.0% (including any price decrease greater than 10.0%) of the original consideration payable pursuant to the Merger Agreement in effect as of the date hereof will be deemed to be materially adverse to the interests of the Lenders and will require the prior written consent of the Arrangers); and
Appears in 1 contract
Sources: Credit Agreement
Conditions Precedent to the Closing Date. The effectiveness of this Agreement on the Closing Date, Date is conditioned upon the obligation of each Lender to make the initial Credit Extensions of Term A Loans (other than Term A-2 Loans), Term B Loans and Revolving Credit Loans, and of the L/C Issuer to issue Letters of Credit, shall, in each case, be subject to Section 11.25 and the following conditionsfollowing:
(a) The Administrative Agent’s receipt Agent shall have received all of the followingfollowing documents, instruments and agreements, in each of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and each case in form and substance reasonably satisfactory to it and to each of the Applicable Administrative Agent and its legal counselBanks:
(i) a Note An executed by each applicable Borrower in favor counterpart of each Lender that has requested a Note;this Agreement, including all exhibits and schedules hereto.
(ii) each document necessary to satisfy the Collateral and Guaranty Requirements with respect to the Loan Parties and assets thereof in existence as Written consent of the Closing “Administrative Agent” (as such term is defined in the World Fuel Credit Agreement) that the transactions contemplated by the Facility Documents, including, without limitation, the purchase and sale of each Purchased Receivable on a Purchase Date, including those documents listed on Schedule 4.02(a)(ii) under the caption constitute a “Closing Date Matters”, together with any other documents and instruments Permitted Receivables Facility” (as may be necessary or advisable such term is defined in the reasonable opinion of the Applicable Administrative Agent to vest in the Applicable Administrative Agent valid and subsisting first priority perfected Liens (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge World Fuel Credit Agreement)) on the properties purported to be subject to the Collateral Documents as of the Closing Date, enforceable against all third parties in accordance with their terms; provided that to the extent that after the Effective Date, Holdings or SpinCo or any of their respective Subsidiaries create or acquire any assets as to which a Lien is required to be created or perfected pursuant to the Collateral and Guaranty Requirements, Holdings shall promptly notify the Applicable Administrative Agent in reasonable detail in writing thereof, and the Applicable Administrative Agent may supplement Schedule 4.02(a)(ii), under the caption “Closing Date Matters”, consistent with the Collateral and Guaranty Requirements, to include any agreements, documents or actions of the types specified in the first parenthetical of the last paragraph of this Section 4.02;.
(iii) a certificate Certified copies of a Responsible Officer resolutions of each Loan Party certifying as to the Organization Documents thereof together with copies Facility Party’s board of the Organization Documents of such Loan Party annexed thereto;
(iv) such certificates of resolutions directors or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Applicable Administrative Agent may reasonably require evidencing the identity, equivalent governing authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with authorizing this Agreement and the other Loan Facility Documents to which such Loan Facility Party is a party;, and authorizing a person or persons to sign those documents including any subsequent notices and acknowledgements to be executed or delivered pursuant to such Facility Documents and any other documents to be executed or delivered by such Facility Party pursuant thereto, together with an officer incumbency and specimen signature certificate.
(viv) an opinion from (A) ▇▇▇▇▇▇ Price P.C., special New York Legal opinions of counsel to the Loans Parties, (B) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Gervais LLP, special Ontario, British Columbia and Alberta counsel Facility Parties relating to corporate matters with respect to the Loan Parties, transactions contemplated hereby and (C) local or other counsel in each of the jurisdictions listed on Schedule 4.02(a)(v) under the heading “Closing Date Opinions”, in each case as reasonably requested by the Applicable Administrative Agent, and, in the case of each of clauses (A) and (B), each in substantially the form previously provided to the Applicable Administrative Agent with such changes as are reasonably satisfactory to the Applicable Administrative Agent or as may arise from any changes in applicable law and, in the case of clause (C), in form and substance reasonably satisfactory addressed to the Administrative Agent and the Lenders (it being understood that the Lenders shall be deemed to be satisfied with any such opinion if it is provided to them at least three (3) days prior to the Closing Date and if the Required Lenders shall not have objected thereto prior to Banks as of the Closing Date);.
(v) Legal opinions of outside counsel to the Facility Parties relating to the enforceability, true sale and the perfection of the ownership and security interests created hereby with respect to the transactions contemplated hereby and addressed to the Administrative Agent and the Banks as of the Closing Date.
(vi) a certificate attesting Lien search reports as the Administrative Agent shall deem advisable with respect to the Solvency Facility Parties, and releases of Holdings and its Subsidiaries (taken as a whole) any Adverse Claim on the Closing Date after giving effect to the Transaction, from the chief financial officer of Holdings;Purchased Receivables shown in such reports.
(vii) a certificate attesting Copies of UCC financing statements or other filings as are required to the compliance with clauses be made hereunder.
(b), ) The Insurance Policy shall be in full force and effect.
(c), (d), (e), (k), (m), (n), (o) The Administrative Agent and (q) the Banks shall have received the fees and other amounts payable by the Facility Parties as of this Section 4.02 on the Closing Date from a Responsible Officer of Holdings;pursuant to the terms hereof and the Mandate Letter.
(viiid) a Committed Loan Notice pursuant to Section 2.02 The Administrative Agent and the Banks shall have received all documentation and other than information with respect to each Facility Party and each Approved Buyer required under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Term A-2 Loans;
(ix) an Officer’s Certificate (as defined in the Existing Senior Subordinated Notes Indenture) certifying that the Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness under PATRIOT Act. Each Bank, by delivering its signature page to this Agreement on the Closing Date does not violate the Existing Senior Subordinated Notes Indenture and attaching thereto a copy of any notice or certificate delivered to the trustee under the Existing Senor Subordinated Notes Indenture in connection with such Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness; provided that for purposes of such certification 100% of the Commitments Date, shall be deemed to have been borrowed acknowledged receipt of, and consented to and approved, each Facility Document and each other document, agreement, instrument, certificate or opinion required to be approved by such Bank on the Closing Date; and
(x) a counterpart of each of (i) the U.S. Perfection Certificate (as defined in the U.S. Security Agreement), executed by Holdings and each other U.S. Loan Party party thereto, (ii) the Canadian Perfection Certificate (as defined in the applicable Canadian Security Agreement), executed by each Canadian Subsidiary of Holdings and SpinCo.
(b) All fees and expenses required to be paid and invoiced on or before the Closing Date shall have been, or concurrently with the closing of the Transaction shall be, paid in full in cash.
(c) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Refinancing shall have been consummated in full with all Liens in favor of the existing lenders being unconditionally released; the Applicable Administrative Agent shall have received a “pay-off” letter in form and substance reasonably satisfactory to the Applicable Administrative Agent with respect to all debt being refinanced in the Refinancing; and the Applicable Administrative Agent shall have received from any Person holding any Lien securing any such debt, such UCC and/or PPSA termination statements, mortgage releases, releases of assignments of leases and rents, releases of security interests in intellectual property and other instruments, in each case in proper form for recording, as the Applicable Administrative Agent shall have reasonably requested to release and terminate of record the Liens securing such debt.
(d) (i) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Contribution, the Merger and the Transaction shall have been consummated in accordance with the Merger Agreement, the Separation Agreement and this Agreement and in the sequence set forth in Schedule 4.01(c)(i); provided that no amendment, modification or waiver of any term of the Merger Agreement or the Separation Agreement (other than any such amendment, modification or waiver that is not materially adverse to the interests of the Lenders) shall be made or granted, as the case may be, without the prior written consent of the Arrangers (not to be unreasonably withheld or delayed) (it being understood that any change greater than 10.0% (including any price decrease greater than 10.0%) of the original consideration payable pursuant to the Merger Agreement in effect as of the date hereof will be deemed to be materially adverse to the interests of the Lenders and will require the prior written consent of the Arrangers); and
Appears in 1 contract
Sources: Master Accounts Receivable Purchase Agreement (World Fuel Services Corp)
Conditions Precedent to the Closing Date. The effectiveness of this Agreement is subject to and conditional upon the prior fulfilment of the following conditions to the satisfaction of the Administrative Agent and the Lenders:
12.1.1 On or prior to 4:00 p.m. (Toronto time) on the Banking Day before the Closing Date, the obligation of Administrative Agent shall have received from the Borrower, in sufficient quantities to provide one copy to each Lender and to make the initial Credit Extensions of Term A Loans (other than Term A-2 Loans), Term B Loans and Revolving Credit Loans, and of the L/C Issuer to issue Letters of Credit, shall, in each case, be subject to Section 11.25 and the following conditions:
(a) The Administrative Agent’s receipt of , the following, each dated as of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of date satisfactory to the signing Loan Party Lenders and each in form and substance reasonably satisfactory to the Applicable Administrative Agent and its legal counsel:Lenders:
(i) a Note 12.1.1.1 this Agreement duly executed by each applicable Borrower in favor of each Lender that has requested a Notethe Obligors, the Lenders and the Administrative Agent;
(ii) each document necessary to satisfy 12.1.1.2 the Collateral and Guaranty Requirements with respect to Intercreditor Agreement duly executed by the Loan Parties and assets thereof in existence as of Obligors, the Closing DateLenders, including those documents listed on Schedule 4.02(a)(ii) under the caption “Closing Date Matters”, together with any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Applicable Administrative Agent to vest in the Applicable Administrative Agent valid and subsisting first priority perfected Liens (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge Agreement)) on the properties purported to be subject to the Collateral Documents as of the Closing Date, enforceable against all third parties in accordance with their terms; provided that to the extent that after the Effective Date, Holdings or SpinCo or any of their respective Subsidiaries create or acquire any assets as to which a Lien is required to be created or perfected pursuant to the Collateral and Guaranty Requirements, Holdings shall promptly notify the Applicable Administrative Agent in reasonable detail in writing thereof, Hedge Providers and the Applicable Administrative Agent may supplement Schedule 4.02(a)(ii), under the caption “Closing Date Matters”, consistent with the Collateral and Guaranty Requirements, to include any agreements, documents or actions of the types specified in the first parenthetical of the last paragraph of this Section 4.02Agent;
(iii) a certificate of a Responsible Officer of each Loan Party certifying as to the Organization Documents thereof together with 12.1.1.3 certified copies of the Organization Documents of such Loan Party annexed thereto;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers charter and by-laws of each Loan Party as Obligor and of all documents and resolutions evidencing necessary corporate action on their part approving and authorizing the Applicable Administrative Agent may reasonably require evidencing the identityexecution, authority delivery and capacity performance 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 partyparty and evidencing any other necessary corporate action with respect to this Agreement, the other Loan Documents and the instruments, certificates or other documents contemplated herein, and approving and authorizing the manner in which and by whom the foregoing documents are to be executed and delivered;
12.1.1.4 a certificate of status, compliance, good standing or like certificate with respect to each Obligor issued by the appropriate government officials of the jurisdiction of its incorporation or amalgamation, as applicable, and each jurisdiction in which they carry on business if applicable;
12.1.1.5 certified copies of the Required Approvals, if any;
12.1.1.6 a certificate of a Responsible Officer of each Obligor certifying the names and true signature of their officers authorized to sign this Agreement, the other Loan Documents and any other documents or certificates to be delivered pursuant to this Agreement;
12.1.1.7 certificates of insurance in accordance with the requirements of Section 13.4;
12.1.1.8 copies of any existing Phase 1 environmental assessment and environmental audits in respect of all Material Real Property owned or leased by the Obligors which have not previously been delivered to the Administrative Agent;
12.1.1.9 the Guarantees and Security Documents duly authorized, executed and delivered by each of the Obligors parties hereto to the extent required by the Collateral and Guarantee Requirement to the extent such Security Documents have not previously been delivered to the Administrative Agent;
12.1.1.10 a certificate of a Responsible Officer of the Borrower certifying that, on the Closing Date, the Borrower is in compliance with the financial ratios set forth in Section 13.2.1;
12.1.1.11 certified copy of the Term Loan Agreement including all amendments thereto;
12.1.1.12 the results of Lien searches of all filings, registrations or recordings of or with respect to all the Assets (vother than real property) of the Obligors (i) for Canadian Obligors, in each jurisdiction in which their respective Assets are located or they have an office (which Assets in such jurisdiction have a value exceeding $1,000,000), and (ii) for US Obligors, in their jurisdiction of organization, in each case, together with such other documents that the Lenders shall reasonably require evidencing, to the entire satisfaction of the Lenders, that all such Assets are free and clear of all Liens, other than Permitted Liens;
12.1.1.13 a favourable opinion from (A) ▇▇▇▇▇▇ Price P.C.of Stikeman Elliott LLP, special New York Canadian counsel to the Loans PartiesBorrower, (B) and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Gervais & ▇▇▇▇▇▇▇▇ LLP, special Ontario, British Columbia and Alberta United States counsel to the Loan Parties, and (C) local or other counsel in each of the jurisdictions listed on Schedule 4.02(a)(v) under the heading “Closing Date Opinions”, in each case as reasonably requested by the Applicable Administrative Agent, and, in the case of each of clauses (A) and (B), each in substantially the form previously provided to the Applicable Administrative Agent with such changes as are reasonably satisfactory to the Applicable Administrative Agent or as may arise from any changes in applicable law and, in the case of clause (C)Borrower, in form and substance reasonably acceptable to the Administrative Agent and the Lenders, addressed to the Administrative Agent, the Lenders and Lenders’ Counsel; and
12.1.1.14 a favourable report of Lenders’ Counsel, addressed to the Administrative Agent and to each Lender;
12.1.2 each of the Security Documents or financing statements, notices or applications in respect thereof, shall have been duly registered, filed and recorded against all Material Real Property of each Obligor, if any, and in all other places and in all jurisdictions which the Lenders shall require, to the entire satisfaction of the Lenders and Lenders’ Counsel and the Administrative Agent shall have received evidence satisfactory to the Lenders and Lenders’ Counsel of such registrations, recordings or filings and that the Security Interests thereunder constitute valid, effective and perfected first priority Security Interests, subject only to Permitted Liens, except to the extent delivery of Security Documents and related confirmation of title insurance in respect of Material Real Property is due at a date following Closing;
12.1.3 receipt by the Administrative Agent of all estoppel letters reasonably required by the Administrative Agent in accordance with the requirements of Schedule 14.1, to the extent not previously delivered to the Administrative Agent;
12.1.4 receipt by each Lender of all information and documents required by such Lender to meet its obligations with respect to “know your customer” rules and rules under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and its regulations (or similar Applicable Law);
12.1.5 no event has occurred which constitutes a Material Adverse Effect since September 30, 2019; and
12.1.6 all amounts due and payable on or before the initial Advance by the Borrower pursuant to this Agreement and the other Loan Documents, including reasonable out of pocket costs, work fees and reasonable legal fees of the Administrative Agent and the Lenders (it being understood that the Lenders shall be deemed to be satisfied with any such opinion if it is provided to them at least three (3) days prior to the Closing Date and if the Required Lenders shall not have objected thereto prior to the Closing Date);
(vi) a certificate attesting to the Solvency including reasonable legal fees of Holdings and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transaction, from the chief financial officer of Holdings;
(vii) a certificate attesting to the compliance with clauses (bLenders’ Counsel), (c), (d), (e), (k), (m), (n), (o) and (q) of this Section 4.02 on the Closing Date from a Responsible Officer of Holdings;
(viii) a Committed Loan Notice pursuant to Section 2.02 other than with respect to the Term A-2 Loans;
(ix) an Officer’s Certificate (as defined in the Existing Senior Subordinated Notes Indenture) certifying that the Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness under this Agreement on the Closing Date does not violate the Existing Senior Subordinated Notes Indenture and attaching thereto a copy of any notice or certificate delivered to the trustee under the Existing Senor Subordinated Notes Indenture in connection with such Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness; provided that for purposes of such certification 100% of the Commitments shall be deemed to have been borrowed on the Closing Date; and
(x) a counterpart of each of (i) the U.S. Perfection Certificate (as defined in the U.S. Security Agreement), executed by Holdings and each other U.S. Loan Party party thereto, (ii) the Canadian Perfection Certificate (as defined in the applicable Canadian Security Agreement), executed by each Canadian Subsidiary of Holdings and SpinCo.
(b) All fees and expenses required to be paid and invoiced on or before the Closing Date shall have been, or concurrently with the closing of the Transaction shall be, paid in full in cash.
(c) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Refinancing shall have been consummated in full with all Liens in favor paid or be paid out of the existing lenders being unconditionally released; the Applicable Administrative Agent shall have received a “pay-off” letter in form and substance reasonably satisfactory to the Applicable Administrative Agent with respect to all debt being refinanced in the Refinancing; and the Applicable Administrative Agent shall have received from any Person holding any Lien securing any such debt, such UCC and/or PPSA termination statements, mortgage releases, releases proceeds of assignments of leases and rents, releases of security interests in intellectual property and other instruments, in each case in proper form for recording, as the Applicable Administrative Agent shall have reasonably requested to release and terminate of record the Liens securing such debt.
(d) (i) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Contribution, the Merger and the Transaction shall have been consummated in accordance with the Merger Agreement, the Separation Agreement and this Agreement and in the sequence set forth in Schedule 4.01(c)(i); provided that no amendment, modification or waiver of any term of the Merger Agreement or the Separation Agreement (other than any such amendment, modification or waiver that is not materially adverse to the interests of the Lenders) shall be made or granted, as the case may be, without the prior written consent of the Arrangers (not to be unreasonably withheld or delayed) (it being understood that any change greater than 10.0% (including any price decrease greater than 10.0%) of the original consideration payable pursuant to the Merger Agreement in effect as of the date hereof will be deemed to be materially adverse to the interests of the Lenders and will require the prior written consent of the Arrangers); andAdvance under Facility A Credit.
Appears in 1 contract
Conditions Precedent to the Closing Date. The obligations of the Lenders to make Advances and of each Issuing Bank to issue Letters of Credit hereunder shall be subject to the following conditions having been satisfied or waived (the first such date on which each of the following conditions have been satisfied or waived, the “Closing Date”):
(a) Since March 22, 2021, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect (as defined in the Merger Agreement) on the Company (as defined in the Merger Agreement).
(b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities). US-DOCS\122160094.24
(c) On the Closing Date, the obligation Agent shall have received for the account of each Lender to make the initial Credit Extensions of Term A Loans (other than Term A-2 Loans), Term B Loans and Revolving Credit Loans, and a certificate signed by a duly authorized officer of the L/C Issuer Company, dated the Closing Date, certifying to issue Letters of Credit, shall, in each case, be subject to Section 11.25 and the following conditions:
occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Administrative Agent’s receipt Agent shall have received on or before the Closing Date copies of the following, each of which shall be originalsdated the Closing Date, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and each in form and substance reasonably satisfactory to the Applicable Administrative Agent and its legal counselAgent:
(i) a Note executed The Notes to the Lenders to the extent requested by each applicable Borrower in favor of each any Lender that has requested a Note;pursuant to Section 2.16 prior to the Closing Date.
(ii) each document Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing other necessary to satisfy the Collateral corporate action and Guaranty Requirements governmental approvals, if any, with respect to the Loan Parties and assets thereof in existence as of the Closing Date, including those documents listed on Schedule 4.02(a)(ii) under the caption “Closing Date Matters”, together with any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Applicable Administrative Agent to vest in the Applicable Administrative Agent valid and subsisting first priority perfected Liens (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge Agreement)) on the properties purported to be subject to the Collateral Documents as of the Closing Date, enforceable against all third parties in accordance with their terms; provided that to the extent that after the Effective Date, Holdings or SpinCo or any of their respective Subsidiaries create or acquire any assets as to which a Lien is required to be created or perfected pursuant to the Collateral and Guaranty Requirements, Holdings shall promptly notify the Applicable Administrative Agent in reasonable detail in writing thereof, this Agreement and the Applicable Administrative Agent may supplement Schedule 4.02(a)(ii), under the caption “Closing Date Matters”, consistent with the Collateral and Guaranty Requirements, to include any agreements, documents or actions of the types specified in the first parenthetical of the last paragraph of this Section 4.02;Notes.
(iii) a A certificate of a Responsible Officer the Secretary or an Assistant Secretary of each Loan Party the Company certifying as the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, to the Organization Documents thereof together with copies extent applicable, as of a recent date by the applicable state governmental authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state governmental authority of the Organization Documents Company’s jurisdiction of such Loan Party annexed thereto;incorporation.
(iv) such certificates A customary opinion of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Applicable Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(v) an opinion from (A) Pillsbury W▇▇▇▇▇▇ Price P.C., special New York counsel to the Loans Parties, (B) ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Gervais LLP, special Ontario, British Columbia and Alberta counsel to the Loan PartiesCompany.
(v) The Agent shall have received a certificate, and (C) local or other counsel in each of the jurisdictions listed on Schedule 4.02(a)(v) under the heading “Closing Date Opinions”, in each case as reasonably requested by the Applicable Administrative Agent, and, substantially in the case form of each of clauses (A) and (B), each in substantially the form previously provided to the Applicable Administrative Agent with such changes as are reasonably satisfactory to the Applicable Administrative Agent or as may arise from any changes in applicable law and, in the case of clause (C), in form and substance reasonably satisfactory to the Administrative Agent and the Lenders (it being understood that the Lenders shall be deemed to be satisfied with any such opinion if it is provided to them at least three (3) days prior to the Closing Date and if the Required Lenders shall not have objected thereto prior to the Closing Date);
(vi) a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the TransactionExhibit E hereto, from the chief financial officer of Holdings;the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions are solvent.
(viivi) a certificate attesting (x) at least three days prior to the compliance with clauses (b), (c), (d), (e), (k), (m), (n), (o) and (q) of this Section 4.02 on the Closing Date from a Responsible Officer of Holdings;
(viii) a Committed Loan Notice pursuant to Section 2.02 all documentation and other than information regarding the Company requested in connection with respect applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the Term A-2 Loans;
(ix) an Officer’s Certificate (as defined extent reasonably requested in writing of the Existing Senior Subordinated Notes Indenture) certifying that the Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness under this Agreement on Company at least ten Business Days prior to the Closing Date does not violate the Existing Senior Subordinated Notes Indenture and attaching thereto a copy of any notice or certificate delivered to the trustee under the Existing Senor Subordinated Notes Indenture in connection with such Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness; provided that for purposes of such certification 100% of the Commitments shall be deemed to have been borrowed on the Closing Date; and
(x) a counterpart of each of (i) the U.S. Perfection Certificate (as defined in the U.S. Security Agreement), executed by Holdings and each other U.S. Loan Party party thereto, (ii) the Canadian Perfection Certificate (as defined in the applicable Canadian Security Agreement), executed by each Canadian Subsidiary of Holdings and SpinCo.
(b) All fees and expenses required to be paid and invoiced on or before the Closing Date shall have been, or concurrently with the closing of the Transaction shall be, paid in full in cash.
(c) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Refinancing shall have been consummated in full with all Liens in favor of the existing lenders being unconditionally released; the Applicable Administrative Agent shall have received a “pay-off” letter in form and substance reasonably satisfactory to the Applicable Administrative Agent with respect to all debt being refinanced in the Refinancing; and the Applicable Administrative Agent shall have received from any Person holding any Lien securing any such debt, such UCC and/or PPSA termination statements, mortgage releases, releases of assignments of leases and rents, releases of security interests in intellectual property and other instruments, in each case in proper form for recording, as the Applicable Administrative Agent shall have reasonably requested to release and terminate of record the Liens securing such debt.
(d) (i) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Contribution, the Merger and the Transaction shall have been consummated in accordance with the Merger Agreement, the Separation Agreement and this Agreement and in the sequence set forth in Schedule 4.01(c)(i); provided that no amendment, modification or waiver of any term of the Merger Agreement or the Separation Agreement (other than any such amendment, modification or waiver that is not materially adverse to the interests of the Lenders) shall be made or granted, as the case may be, without the prior written consent of the Arrangers (not to be unreasonably withheld or delayed) (it being understood that any change greater than 10.0% (including any price decrease greater than 10.0%) of the original consideration payable pursuant to the Merger Agreement in effect as of the date hereof will be deemed to be materially adverse to the interests of the Lenders and will require the prior written consent of the Arrangers); and
Appears in 1 contract
Sources: Credit Agreement (Synnex Corp)
Conditions Precedent to the Closing Date. The obligations of the Lenders to make Advances and of each Issuing Bank to issue Letters of Credit hereunder shall be subject to the following conditions having been satisfied or waived (the first such date on which each of the following conditions have been satisfied or waived, the “Closing Date”):
(a) Since March 22, 2021, there has not been any effect, change, event, circumstance, condition, occurrence or development that has had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect (as defined in the Merger Agreement) on the Company (as defined in the Merger Agreement).
(b) The Company shall have paid on the Closing Date all fees required to be paid pursuant to or in connection with this Agreement, to the extent invoiced at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Company) (which amounts may be offset against the proceeds of the Facilities).
(c) On the Closing Date, the obligation Agent shall have received for the account of each Lender to make the initial Credit Extensions of Term A Loans (other than Term A-2 Loans), Term B Loans and Revolving Credit Loans, and a certificate signed by a duly authorized officer of the L/C Issuer Company, dated the Closing Date, certifying to issue Letters of Credit, shall, in each case, be subject to Section 11.25 and the following conditions:
occurrence or satisfaction clauses (a) and (h) of this Section 3.02 substantially concurrently with the occurrence of the Closing Date.
(d) The Administrative Agent’s receipt Agent shall have received on or before the Closing Date copies of the following, each of which shall be originalsdated the Closing Date, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and each in form and substance reasonably satisfactory to the Applicable Administrative Agent and its legal counselAgent:
(i) a Note executed The Notes to the Lenders to the extent requested by each applicable Borrower in favor of each any Lender that has requested a Note;pursuant to Section 2.16 prior to the Closing Date.
(ii) each document Certified copies of the resolutions of the Board of Directors of the Company approving this Agreement and the Notes, and of all documents evidencing other necessary to satisfy the Collateral corporate action and Guaranty Requirements governmental approvals, if any, with respect to the Loan Parties and assets thereof in existence as of the Closing Date, including those documents listed on Schedule 4.02(a)(ii) under the caption “Closing Date Matters”, together with any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Applicable Administrative Agent to vest in the Applicable Administrative Agent valid and subsisting first priority perfected Liens (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge Agreement)) on the properties purported to be subject to the Collateral Documents as of the Closing Date, enforceable against all third parties in accordance with their terms; provided that to the extent that after the Effective Date, Holdings or SpinCo or any of their respective Subsidiaries create or acquire any assets as to which a Lien is required to be created or perfected pursuant to the Collateral and Guaranty Requirements, Holdings shall promptly notify the Applicable Administrative Agent in reasonable detail in writing thereof, this Agreement and the Applicable Administrative Agent may supplement Schedule 4.02(a)(ii), under the caption “Closing Date Matters”, consistent with the Collateral and Guaranty Requirements, to include any agreements, documents or actions of the types specified in the first parenthetical of the last paragraph of this Section 4.02;Notes.
(iii) a A certificate of a Responsible Officer the Secretary or an Assistant Secretary of each Loan Party the Company certifying as the names and true signatures of the officers of the Company authorized to sign this Agreement and the Notes and the other documents to be delivered hereunder, and attaching (x) the charter and by-laws of the Company certified, to the Organization Documents thereof together with copies extent applicable, as of a recent date by the applicable state governmental authority and (y) a good standing certificate (to the extent such concept exists) from the applicable state governmental authority of the Organization Documents Company’s jurisdiction of such Loan Party annexed thereto;incorporation.
(iv) such certificates A customary opinion of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Applicable Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(v) an opinion from (A) ▇▇Pillsbury Wint▇▇▇▇ Price P.C., special New York counsel to the Loans Parties, (B) ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Gervais LLP, special Ontario, British Columbia and Alberta counsel to the Loan PartiesCompany.
(v) The Agent shall have received a certificate, and (C) local or other counsel in each of the jurisdictions listed on Schedule 4.02(a)(v) under the heading “Closing Date Opinions”, in each case as reasonably requested by the Applicable Administrative Agent, and, substantially in the case form of each of clauses (A) and (B), each in substantially the form previously provided to the Applicable Administrative Agent with such changes as are reasonably satisfactory to the Applicable Administrative Agent or as may arise from any changes in applicable law and, in the case of clause (C), in form and substance reasonably satisfactory to the Administrative Agent and the Lenders (it being understood that the Lenders shall be deemed to be satisfied with any such opinion if it is provided to them at least three (3) days prior to the Closing Date and if the Required Lenders shall not have objected thereto prior to the Closing Date);
(vi) a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the TransactionExhibit E hereto, from the chief financial officer of Holdings;the Borrower certifying that the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions are solvent.
(viivi) a certificate attesting (x) at least three days prior to the compliance with clauses (b), (c), (d), (e), (k), (m), (n), (o) and (q) of this Section 4.02 on the Closing Date from a Responsible Officer of Holdings;
(viii) a Committed Loan Notice pursuant to Section 2.02 all documentation and other than information regarding the Company requested in connection with respect applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the Term A-2 Loans;
(ix) an Officer’s Certificate (as defined extent reasonably requested in writing of the Existing Senior Subordinated Notes Indenture) certifying that the Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness under this Agreement on Company at least ten Business Days prior to the Closing Date does not violate the Existing Senior Subordinated Notes Indenture and attaching thereto a copy of any notice or certificate delivered to the trustee under the Existing Senor Subordinated Notes Indenture in connection with such Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness; provided that for purposes of such certification 100% of the Commitments shall be deemed to have been borrowed on the Closing Date; and
(x) a counterpart of each of (i) the U.S. Perfection Certificate (as defined in the U.S. Security Agreement), executed by Holdings and each other U.S. Loan Party party thereto, (ii) the Canadian Perfection Certificate (as defined in the applicable Canadian Security Agreement), executed by each Canadian Subsidiary of Holdings and SpinCo.
(b) All fees and expenses required to be paid and invoiced on or before the Closing Date shall have been, or concurrently with the closing of the Transaction shall be, paid in full in cash.
(c) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Refinancing shall have been consummated in full with all Liens in favor of the existing lenders being unconditionally released; the Applicable Administrative Agent shall have received a “pay-off” letter in form and substance reasonably satisfactory to the Applicable Administrative Agent with respect to all debt being refinanced in the Refinancing; and the Applicable Administrative Agent shall have received from any Person holding any Lien securing any such debt, such UCC and/or PPSA termination statements, mortgage releases, releases of assignments of leases and rents, releases of security interests in intellectual property and other instruments, in each case in proper form for recording, as the Applicable Administrative Agent shall have reasonably requested to release and terminate of record the Liens securing such debt.
(d) (i) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Contribution, the Merger and the Transaction shall have been consummated in accordance with the Merger Agreement, the Separation Agreement and this Agreement and in the sequence set forth in Schedule 4.01(c)(i); provided that no amendment, modification or waiver of any term of the Merger Agreement or the Separation Agreement (other than any such amendment, modification or waiver that is not materially adverse to the interests of the Lenders) shall be made or granted, as the case may be, without the prior written consent of the Arrangers (not to be unreasonably withheld or delayed) (it being understood that any change greater than 10.0% (including any price decrease greater than 10.0%) of the original consideration payable pursuant to the Merger Agreement in effect as of the date hereof will be deemed to be materially adverse to the interests of the Lenders and will require the prior written consent of the Arrangers); and
Appears in 1 contract
Sources: Credit Agreement (Td Synnex Corp)
Conditions Precedent to the Closing Date. The Closing Date, effectiveness of this Agreement and the obligation agreement of each Lender to make the initial Credit Extensions of Term A Loans (other than Term A-2 Loans), Term B Loans and Revolving Credit Loans, and of the L/C Issuer to issue Letters of Credit, shall, in each case, make the Credit Extensions requested to be made on the Closing Date is subject to the satisfaction of, or waiver in accordance with Section 11.25 and 10.01, prior to or concurrently with the making of such Credit Extensions on the Closing Date of the following conditions:conditions precedent (unless characterized as post-closing obligations pursuant to Section 6.17 and set forth on Schedule 6.17):
(a) The Administrative Agent’s receipt of the followingexecuted counterparts of this Agreement and each Guaranty, each of which shall be originals, facsimiles originals or “pdf” telecopies or similar electronic .pdf format files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and each dated the Closing Date and each in form and substance reasonably satisfactory to the Applicable Administrative Agent and its legal counsel:
(i) a Note executed by each applicable Borrower in favor of each Lender that has requested a Notethe Lenders;
(iib) The Administrative Agent’s receipt of each document necessary to satisfy the Collateral and Guaranty Requirements with respect to the Loan Parties and assets thereof in existence as of the Closing Dateagreements, including those documents listed documents, instruments and other items set forth on the closing checklist attached hereto as Schedule 4.02(a)(ii) under 4.01 (the caption “Closing Date MattersChecklist”, together with any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Applicable Administrative Agent to vest in the Applicable Administrative Agent valid and subsisting first priority perfected Liens (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge Agreement)) on the properties purported to be subject to the Collateral Documents as of the Closing Date, enforceable against all third parties in accordance with their terms; provided that to the extent that after the Effective Date, Holdings or SpinCo or any of their respective Subsidiaries create or acquire any assets as to which a Lien is required to be created or perfected pursuant to the Collateral and Guaranty Requirements, Holdings shall promptly notify the Applicable Administrative Agent in reasonable detail in writing thereof, and the Applicable Administrative Agent may supplement Schedule 4.02(a)(ii), under the caption “Closing Date Matters”each of which shall be originals or telecopies or .pdf format files (followed promptly by originals) unless otherwise specified, consistent with the Collateral and Guaranty Requirements, to include any agreements, documents or actions of the types specified in the first parenthetical of the last paragraph of this Section 4.02;
(iii) a certificate of each properly executed by a Responsible Officer of each Loan Party certifying as to the Organization Documents thereof together with copies of the Organization Documents of such Loan Party annexed thereto;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each signing Loan Party as applicable, each dated the Applicable Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(v) an opinion from (A) ▇▇▇▇▇▇ Price P.C., special New York counsel to the Loans Parties, (B) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Gervais LLP, special Ontario, British Columbia and Alberta counsel to the Loan Parties, and (C) local or other counsel in each of the jurisdictions listed on Schedule 4.02(a)(v) under the heading “Closing Date Opinions”, in each case as reasonably requested by the Applicable Administrative Agent, and(or, in the case of each certificates of clauses (Agovernmental officials, a recent date before the Closing Date) and (B), each in substantially the form previously provided to the Applicable Administrative Agent with such changes as are reasonably and substance satisfactory to the Applicable Administrative Agent and the Arranger.
(c) Any fees required to be paid on or before the Closing Date shall have been paid, including fees payable pursuant to Section 2.09.
(d) The Borrower shall have paid all fees, charges and disbursements of counsel to the Agents (directly to such counsel if requested by the Agents) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as may arise from any changes in applicable law andshall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Agents), including title premiums, survey charges and recording taxes or fees.
(e) Each Loan Party shall have obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary or advisable in connection with the case transactions contemplated by the Loan Documents and each of clause (C), the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to the Administrative Agent and Arranger. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the Lenders (it being understood that transactions contemplated by the Lenders Loan Documents or the financing thereof and no action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be deemed pending, and the time for any applicable agency to be satisfied with any such opinion if it is provided take action to them at set aside its consent on its own motion shall have expired.
(f) At least three (3) 10 days prior to the Closing Date and if (or such shorter period agreed to by the Required Lenders), the Lenders shall not have objected thereto prior received all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including 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 Act”).
(g) Borrower shall have been assigned a corporate family rating from ▇▇▇▇▇’▇, a corporate credit rating from S&P and the Loans shall have been assigned a credit rating from each of ▇▇▇▇▇’▇ and S&P.
(h) The Arranger shall have received evidence satisfactory to the Closing Date);Arranger that the pricing for the initial public offering of the Equity Interest in Holdings has occurred.
(vii) The Arranger shall have received a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transaction, from the chief financial officer of Holdings;
(vii) a certificate attesting to the compliance with clauses (b), (c), (d), (e), (k), (m), (n), (o) and (q) of this Section 4.02 on the Closing Date from a Responsible Officer of Holdings;
(viii) a Committed Loan Notice pursuant to Section 2.02 other than with respect to the Term A-2 Loans;
(ix) an Officer’s Certificate (as defined in the Existing Senior Subordinated Notes Indenture) Borrower, attaching and certifying that (A) attached thereto are true and correct copies of (i) the Incurrence Share Purchase Agreement, dated March 20, 2014, by and between Holdings and Samsung Electronics and (as defined ii) the Share Purchase Agreement, dated March 20, 2014, by and between Holdings and Samsung Fine Chemicals, and (B) no breach or default has occurred under any of such agreements and that each such agreement is in full force and effect and has not been terminated. Without limiting the Existing Senior Subordinated Notes Indenture) generality of Indebtedness under this Agreement on the Closing Date does not violate provisions of the Existing Senior Subordinated Notes Indenture and attaching thereto a copy last paragraph of any notice or certificate delivered to the trustee under the Existing Senor Subordinated Notes Indenture in connection with such Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness; provided that Section 9.03, for purposes of such certification 100% of determining compliance with the Commitments conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have been borrowed on the Closing Date; and
(x) a counterpart of each of (i) the U.S. Perfection Certificate (as defined in the U.S. Security Agreement)consented to, executed by Holdings and each other U.S. Loan Party party thereto, (ii) the Canadian Perfection Certificate (as defined in the applicable Canadian Security Agreement), executed by each Canadian Subsidiary of Holdings and SpinCo.
(b) All fees and expenses required approved or accepted or to be paid and invoiced on satisfied with, each document or before the Closing Date shall have been, or concurrently with the closing of the Transaction shall be, paid in full in cash.
(c) Prior other matter required thereunder to be consented to or substantially concurrently with approved by or acceptable or satisfactory to a Lender unless the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Refinancing shall have been consummated in full with all Liens in favor of the existing lenders being unconditionally released; the Applicable Administrative Agent shall have received a “pay-off” letter in form and substance reasonably satisfactory notice from such Lender prior to the Applicable Administrative Agent with respect to all debt being refinanced in the Refinancing; and the Applicable Administrative Agent shall have received from any Person holding any Lien securing any such debt, such UCC and/or PPSA termination statements, mortgage releases, releases of assignments of leases and rents, releases of security interests in intellectual property and other instruments, in each case in proper form for recording, as the Applicable Administrative Agent shall have reasonably requested to release and terminate of record the Liens securing such debtproposed Closing Date specifying its objection thereto.
(d) (i) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Contribution, the Merger and the Transaction shall have been consummated in accordance with the Merger Agreement, the Separation Agreement and this Agreement and in the sequence set forth in Schedule 4.01(c)(i); provided that no amendment, modification or waiver of any term of the Merger Agreement or the Separation Agreement (other than any such amendment, modification or waiver that is not materially adverse to the interests of the Lenders) shall be made or granted, as the case may be, without the prior written consent of the Arrangers (not to be unreasonably withheld or delayed) (it being understood that any change greater than 10.0% (including any price decrease greater than 10.0%) of the original consideration payable pursuant to the Merger Agreement in effect as of the date hereof will be deemed to be materially adverse to the interests of the Lenders and will require the prior written consent of the Arrangers); and
Appears in 1 contract
Conditions Precedent to the Closing Date. The effectiveness of this Agreement is subject to and conditional upon the prior fulfilment of the following conditions to the satisfaction of the Administrative Agent and the Lenders:
13.1.1 On or prior to 4:00 p.m. (Toronto time) on the Banking Day before the Closing Date, the obligation of Administrative Agent shall have received from the Borrower, in sufficient quantities to provide one copy to each Lender and to make the initial Credit Extensions of Term A Loans (other than Term A-2 Loans), Term B Loans and Revolving Credit Loans, and of the L/C Issuer to issue Letters of Credit, shall, in each case, be subject to Section 11.25 and the following conditions:
(a) The Administrative Agent’s receipt of , the following, each dated as of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of date satisfactory to the signing Loan Party Lenders and each in form and substance reasonably satisfactory to the Applicable Administrative Agent and its legal counselLenders:
(i) a Note 13.1.1.1 this Agreement duly executed by each applicable Borrower in favor of each Lender that has requested a Notethe Obligors, the Lenders and the Administrative Agent;
(ii) each document necessary to satisfy 13.1.1.2 the Collateral and Guaranty Requirements with respect to Intercreditor Agreement duly executed by the Loan Parties and assets thereof in existence as of Obligors, the Closing DateLenders, including those documents listed on Schedule 4.02(a)(ii) under the caption “Closing Date Matters”, together with any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Applicable Administrative Agent to vest in the Applicable Administrative Agent valid and subsisting first priority perfected Liens (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge Agreement)) on the properties purported to be subject to the Collateral Documents as of the Closing Date, enforceable against all third parties in accordance with their terms; provided that to the extent that after the Effective Date, Holdings or SpinCo or any of their respective Subsidiaries create or acquire any assets as to which a Lien is required to be created or perfected pursuant to the Collateral and Guaranty Requirements, Holdings shall promptly notify the Applicable Administrative Agent in reasonable detail in writing thereof, Hedge Providers and the Applicable Administrative Agent may supplement Schedule 4.02(a)(ii), under the caption “Closing Date Matters”, consistent with the Collateral and Guaranty Requirements, to include any agreements, documents or actions of the types specified in the first parenthetical of the last paragraph of this Section 4.02Agent;
(iii) a certificate of a Responsible Officer of each Loan Party certifying as to the Organization Documents thereof together with 13.1.1.3 certified copies of the Organization Documents of such Loan Party annexed thereto;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers charter and by-laws of each Loan Party as Obligor and of all documents and resolutions evidencing necessary corporate action on their part approving and authorizing the Applicable Administrative Agent may reasonably require evidencing the identityexecution, authority delivery and capacity performance 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 partyparty and evidencing any other necessary corporate action with respect to this Agreement, the other Loan Documents and the instruments, certificates or other documents contemplated herein, and approving and authorizing the manner in which and by whom the foregoing documents are to be executed and delivered;
13.1.1.4 a certificate of status, compliance, good standing or like certificate with respect to each Obligor issued by the appropriate government officials of the jurisdiction of its incorporation or amalgamation, as applicable, and each jurisdiction in which they carry on business if applicable;
13.1.1.5 certified copies of the Required Approvals, if any;
13.1.1.6 a certificate of a Responsible Officer of each Obligor certifying the names and true signature of their officers authorized to sign this Agreement, the other Loan Documents and any other documents or certificates to be delivered pursuant to this Agreement;
13.1.1.7 certificates of insurance in accordance with the requirements of Section 14.4;
13.1.1.8 copies of any existing Phase 1 environmental assessment and environmental audits in respect of all Material Real Property owned or leased by the Obligors which have not previously been delivered to the Administrative Agent;
13.1.1.9 the Guarantees and Security Documents duly authorized, executed and delivered by each of the Obligors parties hereto to the extent required by the Collateral and Guarantee Requirement to the extent such Security Documents have not previously been delivered to the Administrative Agent;
13.1.1.10 a certificate of a Responsible Officer of the Borrower certifying that, on the Closing Date, the Borrower is in compliance with the financial ratios set forth in Section 14.2.1;
13.1.1.11 certified copy of the Term Loan Agreement including all amendments thereto;
13.1.1.12 the results of Lien searches of all filings, registrations or recordings of or with respect to all the Assets (vother than real property) of the Obligors (i) for Canadian Obligors, in each jurisdiction in which their respective Assets are located or they have an office (which Assets in such jurisdiction have a value exceeding $1,000,000), and (ii) for US Obligors, in their jurisdiction of organization, in each case, together with such other documents that the Lenders shall reasonably require evidencing, to the entire satisfaction of the Lenders, that all such Assets are free and clear of all Liens, other than Permitted Liens;
13.1.1.13 a favourable opinion from (A) ▇▇▇▇▇▇ Price P.C.of Stikeman Elliott LLP, special New York Canadian counsel to the Loans PartiesBorrower, (B) and S▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Gervais & B▇▇▇▇▇▇▇ LLP, special Ontario, British Columbia and Alberta United States counsel to the Loan Parties, and (C) local or other counsel in each of the jurisdictions listed on Schedule 4.02(a)(v) under the heading “Closing Date Opinions”, in each case as reasonably requested by the Applicable Administrative Agent, and, in the case of each of clauses (A) and (B), each in substantially the form previously provided to the Applicable Administrative Agent with such changes as are reasonably satisfactory to the Applicable Administrative Agent or as may arise from any changes in applicable law and, in the case of clause (C)Borrower, in form and substance reasonably acceptable to the Administrative Agent and the Lenders, addressed to the Administrative Agent, the Lenders and Lenders’ Counsel; and
13.1.1.14 a favourable report of Lenders’ Counsel, addressed to the Administrative Agent and to each Lender;
13.1.2 each of the Security Documents or financing statements, notices or applications in respect thereof, shall have been duly registered, filed and recorded against all Material Real Property of each Obligor, if any, and in all other places and in all jurisdictions which the Lenders shall require, to the entire satisfaction of the Lenders and Lenders’ Counsel and the Administrative Agent shall have received evidence satisfactory to the Lenders and Lenders’ Counsel of such registrations, recordings or filings and that the Security Interests thereunder constitute valid, effective and perfected first priority Security Interests, subject only to Permitted Liens, except with respect to the delivery of Security Documents and related confirmation of title insurance in respect of Material Real Property for those Obligors that are becoming Obligors as of the Closing Date, in which case such documents shall be delivered, unless otherwise agreed by the Administrative Agent, within 180 days following Closing;
13.1.3 receipt by the Administrative Agent of all estoppel letters reasonably required by the Administrative Agent in accordance with the requirements of Schedule 15.1, to the extent not previously delivered to the Administrative Agent;
13.1.4 receipt by each Lender of all information and documents required by such Lender to meet its obligations with respect to “know your customer” rules and rules under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and its regulations (or similar Applicable Law);
13.1.5 no event has occurred which constitutes a Material Adverse Effect since June 30, 2021;
13.1.6 the commitment fees, letter of credit fronting fees and Letter of Credit Commissions payable with respect to the Facility B Credit under the Original Credit Agreement for the period from and including July 1, 2021 to the Closing Date and any other amounts payable with respect to the Facility B Credit shall have been paid or be paid out of the proceeds of the initial Advance under Facility A Credit;
13.1.7 all amounts due and payable on or before the initial Advance by the Borrower pursuant to this Agreement and the other Loan Documents, including reasonable out of pocket costs, work fees and reasonable legal fees of the Administrative Agent and the Lenders (it being understood that the Lenders shall be deemed to be satisfied with any such opinion if it is provided to them at least three (3) days prior to the Closing Date and if the Required Lenders shall not have objected thereto prior to the Closing Date);
(vi) a certificate attesting to the Solvency including reasonable legal fees of Holdings and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transaction, from the chief financial officer of Holdings;
(vii) a certificate attesting to the compliance with clauses (bLenders’ Counsel), (c), (d), (e), (k), (m), (n), (o) and (q) of this Section 4.02 on the Closing Date from a Responsible Officer of Holdings;
(viii) a Committed Loan Notice pursuant to Section 2.02 other than with respect to the Term A-2 Loans;
(ix) an Officer’s Certificate (as defined in the Existing Senior Subordinated Notes Indenture) certifying that the Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness under this Agreement on the Closing Date does not violate the Existing Senior Subordinated Notes Indenture and attaching thereto a copy of any notice shall have been paid or certificate delivered to the trustee under the Existing Senor Subordinated Notes Indenture in connection with such Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness; provided that for purposes of such certification 100% be paid out of the Commitments shall be deemed to have been borrowed on proceeds of the Closing Dateinitial Advance under Facility A Credit; and
(x) 13.1.8 receipt by each Lender of a counterpart five-year consolidated financial forecast of each of (i) the U.S. Perfection Certificate (as defined in the U.S. Security Agreement), executed by Holdings and each other U.S. Loan Party party thereto, (ii) the Canadian Perfection Certificate (as defined in the applicable Canadian Security Agreement), executed by each Canadian Subsidiary of Holdings and SpinCoBorrower.
(b) All fees and expenses required to be paid and invoiced on or before the Closing Date shall have been, or concurrently with the closing of the Transaction shall be, paid in full in cash.
(c) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Refinancing shall have been consummated in full with all Liens in favor of the existing lenders being unconditionally released; the Applicable Administrative Agent shall have received a “pay-off” letter in form and substance reasonably satisfactory to the Applicable Administrative Agent with respect to all debt being refinanced in the Refinancing; and the Applicable Administrative Agent shall have received from any Person holding any Lien securing any such debt, such UCC and/or PPSA termination statements, mortgage releases, releases of assignments of leases and rents, releases of security interests in intellectual property and other instruments, in each case in proper form for recording, as the Applicable Administrative Agent shall have reasonably requested to release and terminate of record the Liens securing such debt.
(d) (i) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Contribution, the Merger and the Transaction shall have been consummated in accordance with the Merger Agreement, the Separation Agreement and this Agreement and in the sequence set forth in Schedule 4.01(c)(i); provided that no amendment, modification or waiver of any term of the Merger Agreement or the Separation Agreement (other than any such amendment, modification or waiver that is not materially adverse to the interests of the Lenders) shall be made or granted, as the case may be, without the prior written consent of the Arrangers (not to be unreasonably withheld or delayed) (it being understood that any change greater than 10.0% (including any price decrease greater than 10.0%) of the original consideration payable pursuant to the Merger Agreement in effect as of the date hereof will be deemed to be materially adverse to the interests of the Lenders and will require the prior written consent of the Arrangers); and
Appears in 1 contract
Conditions Precedent to the Closing Date. The Closing Date, the Lenders’ obligation of each Lender to make the initial Credit Extensions of Term A Loans (other than Term A-2 Loans), Term B Loans and Revolving Credit Loans, and of the L/C Issuer to issue Letters of Credit, shall, in each case, shall be subject to Section 11.25 and all of the following conditions:conditions precedent having been satisfied (or waived in accordance with Section 8.01):
(a) The Administrative Agent’s receipt Agent shall have received a counterpart of this Agreement signed on behalf of each party hereto.
(b) The Administrative Agent shall have received certified copies of the following, each of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer resolutions of the signing Loan Party Board of Directors of the Borrower approving, and each in form authorizing the execution, delivery and substance reasonably satisfactory to performance of, this Agreement, the Applicable Administrative Agent Notes and its legal counsel:
(i) a Note executed by each applicable Borrower in favor of each Lender that has requested a Note;
(ii) each document all documents evidencing other necessary to satisfy the Collateral corporate actions and Guaranty Requirements governmental approvals, if any, with respect to the Loan Parties and assets thereof in existence as of the Closing Date, including those documents listed on Schedule 4.02(a)(ii) under the caption “Closing Date Matters”, together with any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Applicable Administrative Agent to vest in the Applicable Administrative Agent valid and subsisting first priority perfected Liens (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge Agreement)) on the properties purported to be subject to the Collateral Documents as of the Closing Date, enforceable against all third parties in accordance with their terms; provided that to the extent that after the Effective Date, Holdings or SpinCo or any of their respective Subsidiaries create or acquire any assets as to which a Lien is required to be created or perfected pursuant to the Collateral and Guaranty Requirements, Holdings shall promptly notify the Applicable Administrative Agent in reasonable detail in writing thereof, and the Applicable Administrative Agent may supplement Schedule 4.02(a)(ii), under the caption “Closing Date Matters”, consistent with the Collateral and Guaranty Requirements, to include any agreements, documents or actions of the types specified in the first parenthetical of the last paragraph of this Section 4.02;
(iii) a certificate of a Responsible Officer of each Loan Party certifying as to the Organization Documents thereof together with copies of the Organization Documents of such Loan Party annexed thereto;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Applicable Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;Notes.
(vc) The Administrative Agent shall have received a certificate of the Secretary or an opinion Assistant Secretary of the Borrower certifying the Borrower’s certificate of incorporation and by-laws and certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes.
(d) The Administrative Agent shall have received a certificate from (A) ▇▇▇▇▇▇ Price P.C., special the Secretary of State of New York counsel Jersey dated as of a date reasonably close to the Loans Partiesdate of such effectiveness as to the good standing of and charter documents filed by the Borrower.
(e) The Administrative Agent shall have received at least 3 Business Days prior to the Closing Date all documentation and other information regarding the Borrower required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act to the extent reasonably requested at least 10 Business Days prior to the Closing Date.
(Bf) ▇▇The Administrative Agent shall have received a favorable opinion of ▇▇▇▇ ▇▇▇▇▇▇ Gervais LLP▇▇, special OntarioSenior Vice President, British Columbia Corporate Secretary and Alberta counsel to the Loan Parties, and (C) local or other counsel in each Associate General Counsel of the jurisdictions listed on Schedule 4.02(a)(v) under the heading “Closing Date Opinions”, in each case as reasonably requested by the Applicable Administrative Agent, and, in the case of each of clauses (A) and (B), each in substantially the form previously provided to the Applicable Administrative Agent with such changes as are reasonably satisfactory to the Applicable Administrative Agent or as may arise from any changes in applicable law and, in the case of clause (C)Borrower, in form and substance reasonably satisfactory acceptable to the Administrative Agent and the Lenders (it being understood that the Lenders shall be deemed to be satisfied with any such opinion if it is provided to them at least three (3) days prior to the Closing Date and if the Required Lenders shall not have objected thereto prior to the Closing Date);
(vi) a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transaction, from the chief financial officer of Holdings;
(vii) a certificate attesting to the compliance with clauses (b), (c), (d), (e), (k), (m), (n), (o) and (q) of this Section 4.02 on the Closing Date from a Responsible Officer of Holdings;
(viii) a Committed Loan Notice pursuant to Section 2.02 other than with respect to the Term A-2 Loans;
(ix) an Officer’s Certificate (as defined in the Existing Senior Subordinated Notes Indenture) certifying that the Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness under this Agreement on the Closing Date does not violate the Existing Senior Subordinated Notes Indenture and attaching thereto a copy of any notice or certificate delivered to the trustee under the Existing Senor Subordinated Notes Indenture in connection with such Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness; provided that for purposes of such certification 100% of the Commitments shall be deemed to have been borrowed on the Closing Date; and
(x) a counterpart of each of (i) the U.S. Perfection Certificate (as defined in the U.S. Security Agreement), executed by Holdings and each other U.S. Loan Party party thereto, (ii) the Canadian Perfection Certificate (as defined in the applicable Canadian Security Agreement), executed by each Canadian Subsidiary of Holdings and SpinCoAgent.
(bg) All fees and expenses required to be paid and invoiced on or before the Closing Date shall have been, or concurrently with the closing of the Transaction shall be, paid in full in cash.
(c) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Refinancing shall have been consummated in full with all Liens in favor of the existing lenders being unconditionally released; the Applicable The Administrative Agent shall have received a “pay-off” letter certificate of an authorized officer of the Borrower certifying that (A) the representations and warranties contained in form Section 4.01 are true and substance reasonably satisfactory correct in all material respects (except to the Applicable Administrative Agent extent such representations and warranties are qualified with respect “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties are true and correct in all respects) on and as of the Closing Date, as though made on and as of the Closing Date, and (B) on and as of the Closing Date and before and after giving effect to all debt being refinanced in the Refinancing; borrowing of Loans and to the Applicable application of the proceeds therefrom, no event has occurred and is continuing, or would result from such borrowing or from the application of the proceeds therefrom, which constitutes a Default or an Event of Default.
(h) The Administrative Agent shall have received from any Person holding any Lien securing any such debt, such UCC and/or PPSA termination statements, mortgage releases, releases a Notice of assignments of leases and rents, releases of security interests in intellectual property and other instruments, in each case in proper form for recording, as the Applicable Administrative Agent shall have reasonably requested to release and terminate of record the Liens securing such debt.
(d) (i) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Contribution, the Merger and the Transaction shall have been consummated Borrowing in accordance with the Merger Agreement, the Separation Agreement and this Agreement and in the sequence set forth in Schedule 4.01(c)(iSection 2.02(a); provided that no amendment, modification or waiver of any term of the Merger Agreement or the Separation Agreement (other than any such amendment, modification or waiver that is not materially adverse to the interests of the Lenders) shall be made or granted, as the case may be, without the prior written consent of the Arrangers (not to be unreasonably withheld or delayed) (it being understood that any change greater than 10.0% (including any price decrease greater than 10.0%) of the original consideration payable pursuant to the Merger Agreement in effect as of the date hereof will be deemed to be materially adverse to the interests of the Lenders and will require the prior written consent of the Arrangers); and.
Appears in 1 contract
Sources: 364 Day Term Loan Agreement (Becton Dickinson & Co)
Conditions Precedent to the Closing Date. The Closing Date, obligations of the obligation of each Lender Lenders to make Loans shall not become effective until the initial Credit Extensions of Term A Loans (other than Term A-2 Loans), Term B Loans and Revolving Credit Loans, and first date on which each of the L/C Issuer to issue Letters of Credit, shall, following conditions shall be satisfied (or such condition shall have been waived in each case, be subject to accordance with Section 11.25 and the following conditions:9.02):
(a) The Administrative Agent’s receipt Agent (or its counsel) shall have received from each party hereto a counterpart of the followingthis Agreement signed on behalf of such party (which, each subject to Section 9.06, may include any Electronic Signatures transmitted by emailed .pdf or any other electronic means that reproduces an image of which shall be originals, facsimiles or “pdf” or similar electronic format an actual executed signature page).
(followed promptly by originalsb) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and each in form and substance reasonably satisfactory to the Applicable The Administrative Agent and its legal counsel:
shall have received (i) a Note executed by each applicable Borrower in favor of each Lender that has requested a Note;
(ii) each document necessary to satisfy the Collateral and Guaranty Requirements with respect to the Loan Parties and assets thereof in existence as an officer’s certificate of the Closing DateBorrower, including those documents listed on Schedule 4.02(a)(ii) under dated the caption “Closing Date Matters”and signed by the Secretary, together with any other documents and instruments as may be necessary Assistant Secretary or advisable in the reasonable opinion a General Counsel of the Applicable Administrative Agent to vest in the Applicable Administrative Agent valid and subsisting first priority perfected Liens (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge Agreement)) on the properties purported to be subject to the Collateral Documents as of the Closing Date, enforceable against all third parties in accordance with their terms; provided that to the extent that after the Effective Date, Holdings or SpinCo or any of their respective Subsidiaries create or acquire any assets as to which a Lien is required to be created or perfected pursuant to the Collateral and Guaranty Requirements, Holdings shall promptly notify the Applicable Administrative Agent in reasonable detail in writing thereof, and the Applicable Administrative Agent may supplement Schedule 4.02(a)(ii), under the caption “Closing Date Matters”, consistent with the Collateral and Guaranty Requirements, to include any agreements, documents or actions of the types specified in the first parenthetical of the last paragraph of this Section 4.02;
(iii) a certificate of a Responsible Officer of each Loan Party certifying as to the Organization Documents thereof together with copies of the Organization Documents of such Loan Party annexed thereto;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Applicable Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(v) an opinion from (A) ▇▇▇▇▇▇ Price P.C., special New York counsel to the Loans Parties, (B) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Gervais LLP, special Ontario, British Columbia and Alberta counsel to the Loan Parties, and (C) local or other counsel in each of the jurisdictions listed on Schedule 4.02(a)(v) under the heading “Closing Date Opinions”, in each case as reasonably requested by the Applicable Administrative Agent, and, in the case of each of clauses (A) and (B), each in substantially the form previously provided to the Applicable Administrative Agent with such changes as are reasonably satisfactory to the Applicable Administrative Agent or as may arise from any changes in applicable law and, in the case of clause (C)Borrower, in form and substance reasonably satisfactory to the Administrative Agent and substantially consistent with the Lenders Borrower’s past practice, together with all attachments contemplated thereby, and (it being understood that ii) a certificate of the Lenders shall be deemed to be satisfied with any such opinion if it is provided to them at least three (3) days prior to Borrower, dated the Closing Date and if signed by an officer of the Required Lenders shall not have objected thereto prior to Borrower, confirming the Closing Date);
(vi) a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken as a whole) satisfaction on the Closing Date after giving effect to of the Transaction, from the chief financial officer of Holdings;
(vii) a certificate attesting to the compliance with clauses (bconditions set forth in Sections 4.01(g), (c), (d), (e), (k), (m), (n), (o4.01(h) and (q4.01(i) of this Section 4.02 on the Closing Date from a Responsible Officer of Holdings;
(viii) a Committed Loan Notice pursuant to Section 2.02 other than with respect to the Term A-2 Loans;
(ix) an Officer’s Certificate (as defined in the Existing Senior Subordinated Notes Indenture) certifying that the Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness under this Agreement on the Closing Date does not violate the Existing Senior Subordinated Notes Indenture and attaching thereto a copy of any notice or certificate delivered to the trustee under the Existing Senor Subordinated Notes Indenture in connection with such Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness; provided that for purposes of such certification 100% of the Commitments shall be deemed to have been borrowed on the Closing Date; and
(x) a counterpart of each of (i) the U.S. Perfection Certificate (as defined in the U.S. Security Agreement), executed by Holdings and each other U.S. Loan Party party thereto, (ii) the Canadian Perfection Certificate (as defined in the applicable Canadian Security Agreement), executed by each Canadian Subsidiary of Holdings and SpinCo.
(b) All fees and expenses required to be paid and invoiced on or before the Closing Date shall have been, or concurrently with the closing of the Transaction shall be, paid in full in cashbelow.
(c) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Refinancing shall have been consummated in full with all Liens in favor of the existing lenders being unconditionally released; the Applicable The Administrative Agent shall have received a “payfavorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Closing Date) of the general counsel, in-off” letter house counsel and/or outside counsel of the Borrower, in each case in form and substance reasonably satisfactory to the Applicable Administrative Agent and substantially consistent with respect to all debt being refinanced in the Refinancing; and the Applicable Borrower’s past practice.
(d) The Administrative Agent shall have received from any Person holding any Lien securing any such debtall fees due and payable on or prior to the Closing Date, such UCC and/or PPSA termination statementsand, mortgage releasesto the extent invoiced at least three Business Days prior to the Closing Date, releases other amounts due and payable on or prior to the Closing Date (including reasonable fees, charges and disbursements of assignments of leases Cravath, Swaine & M▇▇▇▇ LLP) required to be paid or reimbursed by the Borrower pursuant to the Engagement Letter or the Fee Letter.
(e) The Administrative Agent and rents, releases of security interests in intellectual property the Lenders shall have received all documentation and other instrumentsinformation required by bank regulatory authorities with respect to the Borrower under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation, that has been reasonably requested by the Administrative Agent or any Lender in each case in proper form for recording, as writing at least seven Business Days prior to the Applicable Closing Date.
(f) The Administrative Agent shall have reasonably requested to release received a Borrowing Request in respect of the Loans, signed by the Borrower and terminate of record the Liens securing such debtdelivered in accordance with Section 2.03.
(dg) (i) Prior to The Bridge Credit Agreement Tranche 2 Refinancing shall have been, or substantially concurrently with the initial Credit Extension funding of the Loans shall be, consummated.
(h) The representations and warranties contained in Article III shall be true and correct (i) in the case of the representations and warranties qualified by materiality or Material Adverse Effect in the text thereof, in all respects and (ii) in the case of the representations and warranties other than with respect to those referenced in the Term A-2 Loans) foregoing clause (i), in all material respects, on and as of the Closing Date, before and after giving effect to the Contributionborrowing of the Loans on the Closing Date and to the application of the proceeds therefrom.
(i) No Default or Event of Default has occurred and is continuing, or would result from the Merger and borrowing of the Transaction Loans on the Closing Date or the application of the proceeds therefrom. Without limiting the generality of the provisions of Article VII, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender, by becoming a party to 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 been consummated in accordance with the Merger Agreement, the Separation Agreement and this Agreement and in the sequence set forth in Schedule 4.01(c)(i); provided that no amendment, modification or waiver of any term of the Merger Agreement or the Separation Agreement (other than any received notice from such amendment, modification or waiver that is not materially adverse Lender prior to the interests of the Lenders) shall be made or granted, as the case may be, without the prior written consent of the Arrangers (not to be unreasonably withheld or delayed) (it being understood that any change greater than 10.0% (including any price decrease greater than 10.0%) of the original consideration payable pursuant to the Merger Agreement in effect as of the date hereof will be deemed to be materially adverse to the interests of the Lenders and will require the prior written consent of the Arrangers); andspecifying its objection thereto.
Appears in 1 contract
Conditions Precedent to the Closing Date. The Closing Date, the obligation of each Lender to make the initial Credit Extensions of Term A Loans (other than Term A-2 Loans), Term B Loans and Revolving Credit Loans, and Commitments hereunder on the Closing Date is subject to satisfaction of the L/C Issuer to issue Letters of Creditfollowing conditions precedent, shall, in each case, be subject to Section 11.25 except as otherwise agreed between the Borrower and the following conditionsAdministrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, originals or pdf copies or other facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and each in form and substance reasonably satisfactory to the Applicable Administrative Agent and its legal counsel:
(i) a Note executed by each applicable Borrower in favor counterparts of each Lender that has requested a Note;this Agreement; and
(ii) each document necessary to satisfy executed counterparts of the Collateral Fee Letter.
(b) The Administrative Agent’s receipt of a corporate and Guaranty Requirements with respect enforceability opinion from Freshfields US LLP, New York counsel to the Loan Parties Parties, addressed to the Administrative Agent and assets thereof in existence the Lenders and dated as of the Closing Date, including those documents listed on Schedule 4.02(a)(ii.
(c) under The Administrative Agent’s receipt of certificates of good standing (to the caption “Closing Date Matters”, together with any other documents and instruments as may be necessary or advisable in extent such concept exists) from the reasonable opinion applicable secretary of state of the Applicable Administrative Agent to vest in the Applicable Administrative Agent valid state of organization of each Loan Party and subsisting first priority perfected Liens (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge Agreement)) on the properties purported to be subject to the Collateral Documents as dated within 30 days of the Closing Date, enforceable against all third parties in accordance with their terms; provided that to the extent that after the Effective Date, Holdings or SpinCo or any of their respective Subsidiaries create or acquire any assets as to which a Lien is required to be created or perfected pursuant to the Collateral and Guaranty Requirements, Holdings shall promptly notify the Applicable Administrative Agent in reasonable detail in writing thereof, and the Applicable Administrative Agent may supplement Schedule 4.02(a)(ii), under the caption “Closing Date Matters”, consistent with the Collateral and Guaranty Requirements, to include any agreements, documents or actions of the types specified in the first parenthetical of the last paragraph of this Section 4.02;
(iii) a certificate of a Responsible Officer of each Loan Party certifying as to the Organization Documents thereof together with copies of the Organization Documents of such Loan Party annexed thereto;
(iv) such certificates of resolutions or other action, incumbency certificates, certificates of incorporation, certificates of registration, other Organization Documents and statutory registers and/or other certificates of Responsible Officers of each Loan Party as the Applicable Administrative Agent may reasonably require request evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents Documentation to which such Loan Party is a party;.
(vd) an opinion from (A) ▇▇▇▇▇▇ Price P.C., special New York counsel All fees and expenses due to the Loans Parties, (B) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Gervais LLP, special Ontario, British Columbia Lenders and Alberta counsel their Affiliates and required to be paid on the Loan Parties, Closing Date and (C) local or other counsel in each of the jurisdictions listed on Schedule 4.02(a)(v) under the heading “Closing Date Opinions”, in each case as reasonably requested by the Applicable Administrative Agent, and, in the case of each of clauses (Aexpenses) and (B), each in substantially the form previously provided to the Applicable Administrative Agent with such changes as are reasonably satisfactory to the Applicable Administrative Agent or as may arise from any changes in applicable law and, in the case of clause (C), in form and substance reasonably satisfactory to the Administrative Agent and the Lenders (it being understood that the Lenders shall be deemed to be satisfied with any such opinion if it is provided to them invoiced at least three (3) days Business Days before the Closing Date (except as otherwise reasonably agreed by the Borrower) shall have been paid (collectively, the “Closing Date Fees”). The Closing Date Fees (i) shall be fully earned and payable to the Administrative Agent on the date hereof, (ii) shall not be refundable for any reason whatsoever, (iii) shall be in addition to and not creditable against any other fee, cost or expense payable under the Loan Documentation and (iv) shall not be subject to counterclaim or setoff for, or otherwise affected by, any claim or dispute the Borrower may have.
(e) The Lenders shall have received from Borrower the balance sheet and related statement of income, partners’ equity and cash flows of PublicCo as of and for the fiscal year ended December 31, 2024, audited by and accompanied by the opinion of KPMG LLP, independent public accountants.
(f) The Administrative Agent shall have received at least three (3) Business Days prior to the Closing Date all documentation and if other information about the Required Lenders shall Borrower and the Guarantors required under applicable “know your customer” and anti-money laundering rules and regulations, including the Act, that has been requested by the Administrative Agent in writing at least ten (10) Business Days prior to the Closing Date.
(g) Since March 31, 2024, there has not been any Material Adverse Effect with respect to any Loan Party or any development or combination of developments that, individually or in the aggregate, has had or would reasonably be expected to have objected thereto a Material Adverse Effect.
(h) At least three (3) Business Days prior to the Closing Date (to the extent reasonably requested in writing at least ten (10) Business Days prior to the Closing Date);, if Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, Borrower shall deliver a Beneficial Ownership Certification in relation to Borrower.
(vii) a certificate attesting The representations and warranties set forth in Article 3 and in each other Loan Documentation shall be true and correct in all material respects (except that any representation and warranty that is qualified as to the Solvency of Holdings “materiality” or “Material Adverse Effect” shall be true and its Subsidiaries (taken correct in all respects as a wholeso qualified) on and as of the Closing Date after giving with the same effect as though made on and as of such date, except to the Transactionextent such representations and warranties expressly relate to an earlier date, from the chief financial officer in which case they shall be true and correct in all material respects as of Holdings;
(vii) a certificate attesting to the compliance with clauses (b), (c), (d), (e), (k), (m), (n), (o) and (q) such earlier date. The occurrence of this Section 4.02 on the Closing Date from a Responsible Officer of Holdings;
(viii) a Committed Loan Notice pursuant to Section 2.02 other than with respect to the Term A-2 Loans;
(ix) an Officer’s Certificate (as defined in the Existing Senior Subordinated Notes Indenture) certifying that the Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness under this Agreement on the Closing Date does not violate the Existing Senior Subordinated Notes Indenture and attaching thereto a copy of any notice or certificate delivered to the trustee under the Existing Senor Subordinated Notes Indenture in connection with such Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness; provided that for purposes of such certification 100% of the Commitments shall be deemed to have been borrowed on constitute a representation and warranty by the Closing Date; and
(x) a counterpart of each of (i) the U.S. Perfection Certificate (as defined in the U.S. Security Agreement), executed by Holdings Borrower and each other U.S. Loan Party party thereto, (ii) on the Canadian Perfection Certificate (date thereof as defined in to the applicable Canadian Security Agreement), executed by each Canadian Subsidiary of Holdings and SpinCo.
(b) All fees and expenses required to be paid and invoiced on or before the Closing Date shall have been, or concurrently with the closing satisfaction of the Transaction shall be, paid conditions specified in full in cashthis Section 4.01.
(c) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Refinancing shall have been consummated in full with all Liens in favor of the existing lenders being unconditionally released; the Applicable Administrative Agent shall have received a “pay-off” letter in form and substance reasonably satisfactory to the Applicable Administrative Agent with respect to all debt being refinanced in the Refinancing; and the Applicable Administrative Agent shall have received from any Person holding any Lien securing any such debt, such UCC and/or PPSA termination statements, mortgage releases, releases of assignments of leases and rents, releases of security interests in intellectual property and other instruments, in each case in proper form for recording, as the Applicable Administrative Agent shall have reasonably requested to release and terminate of record the Liens securing such debt.
(d) (i) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Contribution, the Merger and the Transaction shall have been consummated in accordance with the Merger Agreement, the Separation Agreement and this Agreement and in the sequence set forth in Schedule 4.01(c)(i); provided that no amendment, modification or waiver of any term of the Merger Agreement or the Separation Agreement (other than any such amendment, modification or waiver that is not materially adverse to the interests of the Lenders) shall be made or granted, as the case may be, without the prior written consent of the Arrangers (not to be unreasonably withheld or delayed) (it being understood that any change greater than 10.0% (including any price decrease greater than 10.0%) of the original consideration payable pursuant to the Merger Agreement in effect as of the date hereof will be deemed to be materially adverse to the interests of the Lenders and will require the prior written consent of the Arrangers); and
Appears in 1 contract
Conditions Precedent to the Closing Date. The Closing Date, closing of this Agreement is subject to the obligation of each Lender to make the initial Credit Extensions of Term A Loans (other than Term A-2 Loans), Term B Loans and Revolving Credit Loans, and satisfaction of the L/C Issuer to issue Letters of Credit, shallfollowing conditions precedent (which, in each caseall cases, shall be subject in form and substance reasonably acceptable to Section 11.25 and the following conditions:Lender):
(a) The Administrative AgentLender’s receipt of the following, each of which shall be originals, facsimiles telecopies or other electronic image scan transmission (e.g., “pdf” or similar electronic format “tif ” via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible an Authorized Officer of the signing Loan Party Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Applicable Administrative Agent and its legal counselLender:
(i) a Note executed by each applicable Borrower counterparts of this Agreement sufficient in favor of each number for distribution to the Lender that has requested a Noteand the Borrower;
(ii) each document necessary to satisfy a promissory note executed by the Collateral and Guaranty Requirements with respect to the Loan Parties and assets thereof Borrower in existence as favor of the Closing Date, including those documents listed on Schedule 4.02(a)(ii) under Lender if so requested by Lender (the caption “Closing Date MattersTerm Note”, together with any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Applicable Administrative Agent to vest in the Applicable Administrative Agent valid and subsisting first priority perfected Liens (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge Agreement)) on the properties purported to be subject to the Collateral Documents as of the Closing Date, enforceable against all third parties in accordance with their terms; provided that to the extent that after the Effective Date, Holdings or SpinCo or any of their respective Subsidiaries create or acquire any assets as to which a Lien is required to be created or perfected pursuant to the Collateral and Guaranty Requirements, Holdings shall promptly notify the Applicable Administrative Agent in reasonable detail in writing thereof, and the Applicable Administrative Agent may supplement Schedule 4.02(a)(ii), under the caption “Closing Date Matters”, consistent with the Collateral and Guaranty Requirements, to include any agreements, documents or actions of the types specified in the first parenthetical of the last paragraph of this Section 4.02;
(iii) a certificate of a Responsible Officer of each Loan Party certifying as to the Organization Documents thereof together with copies of the Organization Documents of such Loan Party annexed thereto;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Authorized Officers of each Loan Party the Borrower as the Applicable Administrative Agent Lender may reasonably require evidencing (A) the authority of Borrower to enter into this Agreement and the other Borrower Documents and (B) the identity, authority and capacity of each Responsible Authorized Officer thereof authorized to act as a Responsible an Authorized Officer in connection with this Agreement and the other Loan Borrower Documents;
(iv) copies of Borrower’s Organization Documents and such other documents and certifications as the Lender may reasonably require to which evidence that the Borrower is duly organized or formed, and that Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such Loan Party is qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a partyMaterial Adverse Effect;
(v) an a favorable opinion from (A) ▇▇▇▇▇▇ Price P.C.of King & Spalding LLP, special New York counsel to the Loans PartiesBorrower, addressed to the Lender, as to such matters concerning the Borrower and the Borrower Documents as the Lender may reasonably request;
(Bvi) a favorable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Gervais & ▇▇▇▇▇▇▇ LLP, special Ontario, British Columbia and Alberta counsel to Office Max Incorporated, addressed to the Loan PartiesLender, as to such matters concerning the Borrower Documents as the Lender may reasonably request;
(vii) a certificate signed by an Authorized Officer of the Borrower certifying (A) that the conditions specified in this Section 2.02 have been satisfied, (B) that there has been no event or circumstance since the filing of Office Depot, Inc.’s Form 10-Q with the Securities and Exchange Commission on August 7, 2019 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) local or other counsel in each of the jurisdictions listed on Schedule 4.02(a)(v) under the heading “Closing Date Opinions”, in each case as reasonably requested by the Applicable Administrative Agent, and, in the case of each of clauses (A) and (B), each in substantially the form previously provided to the Applicable Administrative Agent with such changes as are reasonably satisfactory to the Applicable Administrative Agent or as may arise from any changes in applicable law and, in the case of clause (C), in form and substance reasonably satisfactory to the Administrative Agent and the Lenders (it being understood that the Lenders shall be deemed to be satisfied with any such opinion if it is provided to them at least three (3) days prior to the Closing Date and if the Required Lenders shall not have objected thereto prior to the Closing Date);
(vi) a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken the Borrower as a whole) on of the Closing Date after giving effect to the Transactiontransactions contemplated hereby, from the chief financial officer of Holdings;
(vii) a certificate attesting to the compliance with clauses (b), (c), (d), (e), (k), (m), (n), (o) and (qD) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by Borrower and the validity against Borrower of this Section 4.02 on the Closing Date from a Responsible Officer of HoldingsBorrower Documents, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect;
(viii) a Committed Loan Notice evidence that all insurance required to be maintained pursuant to Section 2.02 other than with respect to the Term A-2 LoansBorrower Documents has been obtained and is in effect;
(ix) an Officer’s Certificate (as defined in the Existing Senior Subordinated Notes Indenture) certifying that Security Agreement, duly executed by the Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness under this Agreement on the Closing Date does not violate the Existing Senior Subordinated Notes Indenture and attaching thereto a copy of any notice or certificate delivered to the trustee under the Existing Senor Subordinated Notes Indenture in connection with such Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness; provided that for purposes of such certification 100% of the Commitments shall be deemed to have been borrowed on the Closing Date; andBorrower;
(x) a counterpart of each of (i) the U.S. Perfection Certificate (as defined in the U.S. Security Agreement)Fee Letter, duly executed by Holdings the Borrower;
(xi) results of searches or other evidence reasonably satisfactory to the Lender (in each case dated as of a date reasonably satisfactory to the Lender) indicating the absence of Liens on the assets of the Borrower, except for Permitted Liens and each Liens for which termination statements and releases, reasonably satisfactory to the Lender, are being tendered concurrently with such extension of credit or other U.S. Loan Party party theretoarrangements reasonably satisfactory to the Lender for the delivery of such termination statements and releases have been made;
(xii) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Lender to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Borrower Documents and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Lender, and
(iixiii) such other assurances, certificates, documents, consents or opinions as the Canadian Perfection Certificate (as defined in the applicable Canadian Security Agreement), executed by each Canadian Subsidiary of Holdings and SpinCoLender reasonably may require.
(b) There shall not be pending any litigation or other proceeding against the Borrower.
(c) There shall not have occurred any default of any Transaction Documents.
(d) The consummation of the transactions contemplated hereby shall not violate any applicable law or any Organization Document.
(e) All fees and expenses required to be paid and invoiced or reimbursed to the Lender on or before the Closing Date, to the extent invoiced at least two (2) Business Days prior to the Closing Date (or such later date as the Borrower may reasonably agree) shall have been, or concurrently with the closing of the Transaction shall be, been paid in full in cashfull.
(cf) Prior to or substantially concurrently with the initial Credit Extension (other than with respect The Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Term A-2 LoansLender to the extent invoiced at least two (2) on Business Days prior to the Closing Date (or such later date as the Borrower may reasonably agree), plus, to the extent such invoice is provided at least two (2) Business Days prior to the Closing Date, such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the Refinancing Effective Date (provided that such estimate shall have been consummated in full with all Liens in favor not thereafter preclude a final settling of accounts between the existing lenders being unconditionally released; Borrowers and the Applicable Administrative Agent Lender).
(g) The Lender shall have received a all documentation and other information required by regulatory authorities under applicable “payknow your customer” and anti-off” letter money laundering rules and regulations, including without limitation the US Patriot Act, in form and substance reasonably each case, the results of which are satisfactory to the Applicable Administrative Agent with respect to all debt being refinanced in the Refinancing; and the Applicable Administrative Agent shall have received from any Person holding any Lien securing any such debt, such UCC and/or PPSA termination statements, mortgage releases, releases of assignments of leases and rents, releases of security interests in intellectual property and other instruments, in each case in proper form for recording, as the Applicable Administrative Agent shall have reasonably requested to release and terminate of record the Liens securing such debtLender.
(dh) (i) Prior to The representations and warranties of Borrower contained in this Agreement or substantially concurrently with the initial Credit Extension (in any other than with respect to the Term A-2 Loans) Borrower 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 on and as of the Closing Date, except (i) to the Contributionextent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and (ii) in the Merger case of any representation and warranty qualified by materiality, they shall be true and correct in all respects.
(i) No Default or Event of Default shall exist, or would result from making the Transaction shall have been consummated Term Loan or from the application of the proceeds thereof.
(j) No event or circumstance which could reasonably be expected to result, either individually or in accordance the aggregate, in a Material Adverse Effect has occurred since the filing of Office Depot, Inc.’s Form 10-Q with the Merger AgreementSecurities and Exchange Commission on August 7, the Separation Agreement and this Agreement and in the sequence set forth in Schedule 4.01(c)(i); provided that no amendment, modification or waiver of any term of the Merger Agreement or the Separation Agreement (other than any such amendment, modification or waiver that is not materially adverse to the interests of the Lenders) shall be made or granted, as the case may be, without the prior written consent of the Arrangers (not to be unreasonably withheld or delayed) (it being understood that any change greater than 10.0% (including any price decrease greater than 10.0%) of the original consideration payable pursuant to the Merger Agreement in effect as of the date hereof will be deemed to be materially adverse to the interests of the Lenders and will require the prior written consent of the Arrangers); and2019.
Appears in 1 contract
Conditions Precedent to the Closing Date. The Closing Date, the obligation effectiveness of each Lender this Agreement is subject solely to make the initial Credit Extensions of Term A Loans satisfaction (other than Term A-2 Loans), Term B Loans and Revolving Credit Loans, and or waiver) of the L/C Issuer to issue Letters of Credit, shall, in each case, be subject to Section 11.25 and the following conditionsconditions precedent:
(a) The Administrative Agent’s receipt of executed counterparts of this Agreement (including exhibits and schedules), which shall be originals or PDF copies unless otherwise specified, properly executed by a duly authorized officer of the Borrower, dated the Closing Date, and in form and substance satisfactory to the Agent and each of the Lenders.
(b) As of the Closing Date, except as disclosed in the Public Filings, there shall have occurred no event or circumstance that could reasonably be expected to result in a Material Adverse Change since December 31, 2024.
(c) All fees due to the Agent, the Arrangers and the Lenders shall have been paid, and all expenses to be paid or reimbursed to the Agent and the Arrangers that have been invoiced at least three (3) Business Days prior to the Closing Date shall have been paid by or at the direction of the Borrower.
(d) The Borrower shall have provided to the Agent, (i) at least three (3) Business Days prior to the Closing Date, the documentation and other information required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the U.S.A. Patriot Act, to the extent requested by the Agent or any Lender at least ten Business Days prior to the Closing Date and (ii) at least three (3) Business Days prior to the Closing Date, 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 to the extent that such Beneficial Ownership Certification was requested at least five (5) Business Days prior to the Closing Date.
(e) The Agent shall have received on or before the Closing Date the following, each of which shall be originalsdated such day, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and each in form and substance reasonably satisfactory to the Applicable Administrative Agent and its legal counsel(except for the Notes) in sufficient copies for each Lender:
(i) a A Note executed by each applicable Borrower in favor of for each Lender that has requested a Note;Note pursuant to Section 2.16.
(ii) each document Certified copies of the resolutions of the Board of Directors of the Borrower approving this Agreement and the Notes, and of all documents evidencing other necessary to satisfy the Collateral corporate action and Guaranty Requirements governmental approvals, if any, with respect to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant Secretary of each of the Borrower and Subsidiary Guarantor certifying the names and true signatures of the officers of such Loan Parties Party authorized to sign each Loan Document to which it is a party.
(iv) A good standing certificate as of a recent date for each of the Borrower and assets thereof Subsidiary Guarantor from the Secretary of State of the State of Delaware.
(v) An officer’s certificate from an executive officer of the Borrower (x) regarding satisfaction of the conditions precedent set forth in existence Sections 3.01 and (ii) certifying that (1) the representations and warranties contained in Section 4.01 (other than the last sentence of the representation and warranty contained in Section 4.01(e)) are true and correct in all material respects (except to the extent such representation and warranty is qualified by Material Adverse Effect or other materiality, in which case it shall be true and correct in all respects) on and as of the Closing Date, including those documents listed on Schedule 4.02(a)(ii) under the caption “Closing Date Matters”, together with any other documents before and instruments as may be necessary or advisable in the reasonable opinion of the Applicable Administrative Agent to vest in the Applicable Administrative Agent valid and subsisting first priority perfected Liens (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge Agreement)) on the properties purported to be subject after giving effect to the Collateral Documents Credit Agreement and the transactions contemplated thereby, and (2) no event has occurred and is continuing, or would result from the transactions contemplated to occur as of the Closing Date, enforceable against all third parties in accordance with their terms; provided that to the extent that after the Effective Date, Holdings or SpinCo or any of their respective Subsidiaries create or acquire any assets as to which constitutes a Lien is required to be created or perfected pursuant to the Collateral and Guaranty Requirements, Holdings shall promptly notify the Applicable Administrative Agent in reasonable detail in writing thereof, and the Applicable Administrative Agent may supplement Schedule 4.02(a)(ii), under the caption “Closing Date Matters”, consistent with the Collateral and Guaranty Requirements, to include any agreements, documents or actions of the types specified in the first parenthetical of the last paragraph of this Section 4.02;Default.
(iiivi) a certificate Favorable opinions of a Responsible Officer of each Loan Party certifying as to the Organization Documents thereof together with copies of the Organization Documents of such Loan Party annexed thereto;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Applicable Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(v) an opinion from (A) ▇▇▇▇▇ ▇▇▇▇▇ Price P.C.LLP, special New York counsel to for the Loans PartiesBorrower, and (B) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Gervais LLP▇▇▇▇▇, special Ontario, British Columbia and Alberta counsel to the Loan Parties, and (C) local or other counsel in each General Counsel of the jurisdictions listed on Schedule 4.02(a)(v) under the heading “Closing Date Opinions”Borrower, in each case as reasonably requested by the Applicable Administrative Agent, and, in the case of each of clauses (A) and (B), each in substantially the form previously provided to the Applicable Administrative Agent with such changes as are reasonably satisfactory to the Applicable Administrative Agent or as may arise from any changes in applicable law and, in the case of clause (C)case, in form and substance reasonably satisfactory acceptable to the Administrative Agent and the Lenders (it being understood that the Lenders shall be deemed to be satisfied with any such opinion if it is provided to them at least three (3) days prior to the Closing Date and if the Required Lenders shall not have objected thereto prior to the Closing Date);
(vi) a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transaction, from the chief financial officer of Holdings;Agent.
(vii) The Subsidiary Guaranty, executed by a certificate attesting to duly authorized officer of the compliance with clauses (b)Subsidiary Guarantor, (c), (d), (e), (k), (m), (n), (o) and (q) dated as of this Section 4.02 on the Closing Date from a Responsible Officer Date, and substantially in the form of Holdings;Exhibit E hereto.
(viii) a Committed Loan Notice pursuant to Section 2.02 Certified copies of the consents of the sole manager of the Subsidiary Guarantor approving the Subsidiary Guaranty, and of all documents evidencing other than necessary corporate action and governmental approvals, if any, with respect to the Term A-2 Loans;
(ix) an Officer’s Certificate (as defined in the Existing Senior Subordinated Notes Indenture) certifying that the Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness under this Agreement on the Closing Date does not violate the Existing Senior Subordinated Notes Indenture and attaching thereto a copy of any notice or certificate delivered to the trustee under the Existing Senor Subordinated Notes Indenture in connection with such Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness; provided that for purposes of such certification 100% of the Commitments shall be deemed to have been borrowed on the Closing Date; and
(x) a counterpart of each of (i) the U.S. Perfection Certificate (as defined in the U.S. Security Agreement), executed by Holdings and each other U.S. Loan Party party thereto, (ii) the Canadian Perfection Certificate (as defined in the applicable Canadian Security Agreement), executed by each Canadian Subsidiary of Holdings and SpinCoGuaranty.
(bf) All fees and expenses required to be paid and invoiced on or before the Closing Date shall have been, or concurrently with the closing of the Transaction shall be, paid in full in cash.
(c) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Refinancing shall have been consummated in full with all Liens in favor of the existing lenders being unconditionally released; the Applicable Administrative The Agent shall have received a “pay-off” letter evidence that the Borrower has terminated the Existing Credit Agreement and repaid in form and substance reasonably satisfactory to the Applicable Administrative Agent with respect to full all debt being refinanced in the Refinancing; and the Applicable Administrative obligations owing thereunder.
(g) The Agent shall have received from any Person holding any Lien securing any such debt, such UCC and/or PPSA termination statements, mortgage releases, releases of assignments of leases and rents, releases of security interests in intellectual property and other instruments, in each case in proper form for recording, as evidence that the Applicable Administrative Commercial Bank Facilities shall become effective substantially simultaneously with the Closing Date.
(h) The Agent shall have reasonably requested to release and terminate of record received evidence that the Liens securing such debt.
(d) Borrower has (i) Prior to or substantially concurrently made a minimum equity investment of $1,000 in Compeer Financial and (ii) entered into a standard membership agreement with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Contribution, the Merger and the Transaction shall have been consummated in accordance with the Merger Agreement, the Separation Agreement and this Agreement and in the sequence set forth in Schedule 4.01(c)(i); provided that no amendment, modification or waiver of any term of the Merger Agreement or the Separation Agreement (other than any such amendment, modification or waiver that is not materially adverse to the interests of the Lenders) shall be made or granted, as the case may be, without the prior written consent of the Arrangers (not to be unreasonably withheld or delayed) (it being understood that any change greater than 10.0% (including any price decrease greater than 10.0%) of the original consideration payable pursuant to the Merger Agreement in effect as of the date hereof will be deemed to be materially adverse to the interests of the Lenders and will require the prior written consent of the Arrangers); andCompeer Financial.
Appears in 1 contract
Conditions Precedent to the Closing Date. The Closing Date, effectiveness of this Agreement and the obligation agreement of each Lender to make the initial Credit Extensions of Term A Loans (other than Term A-2 Loans), Term B Loans and Revolving Credit Loans, and of the L/C Issuer to issue Letters of Credit, shall, in each case, make the Credit Extensions requested to be made on the Closing Date is subject to the satisfaction of, or waiver in accordance with Section 11.25 and 10.01, prior to or concurrently with the making of such Credit Extensions on the Closing Date of the following conditions:conditions precedent (unless characterized as post-closing obligations pursuant to Section 6.17 and set forth on Schedule 6.17):
(a) The Administrative Agent’s receipt of the followingexecuted counterparts of this Agreement and each Guaranty, each of which shall be originals, facsimiles originals or “pdf” telecopies or similar electronic .pdf format files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and each dated the Closing Date and each in form and substance reasonably satisfactory to the Applicable Administrative Agent and its legal counsel:
(i) a Note executed by each applicable Borrower in favor of each Lender that has requested a Notethe Lenders;
(iib) The Administrative Agent’s receipt of each document necessary to satisfy the Collateral and Guaranty Requirements with respect to the Loan Parties and assets thereof in existence as of the Closing Dateagreements, including those documents listed documents, instruments and other items set forth on the closing checklist attached hereto as Schedule 4.02(a)(ii) under 4.01 (the caption “Closing Date MattersChecklist”, together with any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Applicable Administrative Agent to vest in the Applicable Administrative Agent valid and subsisting first priority perfected Liens (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge Agreement)) on the properties purported to be subject to the Collateral Documents as of the Closing Date, enforceable against all third parties in accordance with their terms; provided that to the extent that after the Effective Date, Holdings or SpinCo or any of their respective Subsidiaries create or acquire any assets as to which a Lien is required to be created or perfected pursuant to the Collateral and Guaranty Requirements, Holdings shall promptly notify the Applicable Administrative Agent in reasonable detail in writing thereof, and the Applicable Administrative Agent may supplement Schedule 4.02(a)(ii), under the caption “Closing Date Matters”each of which shall be originals or telecopies or .pdf format files (followed promptly by originals) unless otherwise specified, consistent with the Collateral and Guaranty Requirements, to include any agreements, documents or actions of the types specified in the first parenthetical of the last paragraph of this Section 4.02;
(iii) a certificate of each properly executed by a Responsible Officer of each Loan Party certifying as to the Organization Documents thereof together with copies of the Organization Documents of such Loan Party annexed thereto;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each signing Loan Party as applicable, each dated the Applicable Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(v) an opinion from (A) ▇▇▇▇▇▇ Price P.C., special New York counsel to the Loans Parties, (B) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Gervais LLP, special Ontario, British Columbia and Alberta counsel to the Loan Parties, and (C) local or other counsel in each of the jurisdictions listed on Schedule 4.02(a)(v) under the heading “Closing Date Opinions”, in each case as reasonably requested by the Applicable Administrative Agent, and(or, in the case of each certificates of clauses (Agovernmental officials, a recent date before the Closing Date) and (B), each in substantially the form previously provided to the Applicable Administrative Agent with such changes as are reasonably and substance satisfactory to the Applicable Administrative Agent and the Arranger.
(c) Any fees required to be paid on or before the Closing Date shall have been paid, including fees payable pursuant to Section 2.09.
(d) The Borrower shall have paid all fees, charges and disbursements of counsel to the Agents (directly to such counsel if requested by the Agents) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as may arise from any changes in applicable law andshall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Agents), including title premiums, survey charges and recording taxes or fees.
(e) Each Loan Party shall have obtained all Governmental Authorizations and all consents of other Persons, in each case that are necessary or advisable in connection with the case transactions contemplated by the Loan Documents and each of clause (C), the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to the Administrative Agent and Arranger. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the Lenders (it being understood that transactions contemplated by the Lenders Loan Documents or the financing thereof and no action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be deemed pending, and the time for any applicable agency to be satisfied with any such opinion if it is provided take action to them at set aside its consent on its own motion shall have expired.
(f) At least three (3) 10 days prior to the Closing Date and if (or such shorter period agreed to by the Required Lenders), the Lenders shall not have objected thereto prior received all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including 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 Act”).
(g) Borrower shall have been assigned a corporate family rating from ▇▇▇▇▇’▇, a corporate credit rating from S&P and the Loans shall have been assigned a credit rating from each of ▇▇▇▇▇’▇ and S&P.
(h) The Arranger shall have received evidence satisfactory to the Closing Date);Arranger that the pricing for the initial public offering of the Equity Interest in Holdings has occurred.
(vii) The Arranger shall have received a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transaction, from the chief financial officer of Holdings;
(vii) a certificate attesting to the compliance with clauses (b), (c), (d), (e), (k), (m), (n), (o) and (q) of this Section 4.02 on the Closing Date from a Responsible Officer of Holdings;
(viii) a Committed Loan Notice pursuant to Section 2.02 other than with respect to the Term A-2 Loans;
(ix) an Officer’s Certificate (as defined in the Existing Senior Subordinated Notes Indenture) Borrower, attaching and certifying that the Incurrence (as defined in the Existing Senior Subordinated Notes IndentureA) of Indebtedness under this Agreement on the Closing Date does not violate the Existing Senior Subordinated Notes Indenture attached thereto are true and attaching thereto a copy of any notice or certificate delivered to the trustee under the Existing Senor Subordinated Notes Indenture in connection with such Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness; provided that for purposes of such certification 100% of the Commitments shall be deemed to have been borrowed on the Closing Date; and
(x) a counterpart of each correct copies of (i) the U.S. Perfection Certificate (as defined in the U.S. Security Share Purchase Agreement), executed dated March 20, 2014, by and between Holdings and each other U.S. Loan Party party thereto, Samsung Electronics and (ii) the Canadian Perfection Certificate (as defined in the applicable Canadian Security Share Purchase Agreement), executed dated March 20, 2014, by each Canadian Subsidiary of and between Holdings and SpinCo.
Samsung Fine Chemicals, and (bB) All fees no breach or default has occurred under any of such agreements and expenses required to be paid and invoiced on or before the Closing Date shall have been, or concurrently with the closing of the Transaction shall be, paid that each such agreement is in full in cashforce and effect and has not been terminated.
(c) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Refinancing shall have been consummated in full with all Liens in favor of the existing lenders being unconditionally released; the Applicable Administrative Agent shall have received a “pay-off” letter in form and substance reasonably satisfactory to the Applicable Administrative Agent with respect to all debt being refinanced in the Refinancing; and the Applicable Administrative Agent shall have received from any Person holding any Lien securing any such debt, such UCC and/or PPSA termination statements, mortgage releases, releases of assignments of leases and rents, releases of security interests in intellectual property and other instruments, in each case in proper form for recording, as the Applicable Administrative Agent shall have reasonably requested to release and terminate of record the Liens securing such debt.
(d) (i) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Contribution, the Merger and the Transaction shall have been consummated in accordance with the Merger Agreement, the Separation Agreement and this Agreement and in the sequence set forth in Schedule 4.01(c)(i); provided that no amendment, modification or waiver of any term of the Merger Agreement or the Separation Agreement (other than any such amendment, modification or waiver that is not materially adverse to the interests of the Lenders) shall be made or granted, as the case may be, without the prior written consent of the Arrangers (not to be unreasonably withheld or delayed) (it being understood that any change greater than 10.0% (including any price decrease greater than 10.0%) of the original consideration payable pursuant to the Merger Agreement in effect as of the date hereof will be deemed to be materially adverse to the interests of the Lenders and will require the prior written consent of the Arrangers); and
Appears in 1 contract
Conditions Precedent to the Closing Date. The Closing Date, the obligation of each Lender Date shall not be deemed to make the initial Credit Extensions of Term A Loans (other than Term A-2 Loans), Term B Loans and Revolving Credit Loans, and of the L/C Issuer to issue Letters of Credit, shall, in each case, be subject to Section 11.25 and occur until the following conditionsconditions have been satisfied or waived by Buyer:
(a) The Administrative Agent’s receipt of Buyer has received the followingfollowing documents, each of which shall be originals, facsimiles dated the Closing Date or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and each in form and substance reasonably satisfactory to the Applicable Administrative Agent and its legal counsel:
(i) a Note executed by each applicable Borrower in favor of each Lender that has requested a Note;
(ii) each document necessary to satisfy the Collateral and Guaranty Requirements with respect to the Loan Parties and assets thereof in existence as of the Closing Date, including those documents listed on Schedule 4.02(a)(ii) under the caption “Closing Date Matters”, together with any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Applicable Administrative Agent to vest in the Applicable Administrative Agent valid and subsisting first priority perfected Liens (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge Agreement)) on the properties purported to be subject to the Collateral Documents as of the Closing Date, enforceable against all third parties in accordance with their terms; provided that to the extent that after the Effective Date, Holdings or SpinCo or any of their respective Subsidiaries create or acquire any assets as to which a Lien is required to be created or perfected pursuant to the Collateral and Guaranty Requirements, Holdings shall promptly notify the Applicable Administrative Agent in reasonable detail in writing thereof, and the Applicable Administrative Agent may supplement Schedule 4.02(a)(ii), under the caption “Closing Date Matters”, consistent with the Collateral and Guaranty Requirements, to include any agreements, documents or actions of the types specified in the first parenthetical of the last paragraph of this Section 4.02;
(iii) a certificate of a Responsible Officer of each Loan Party certifying as to the Organization Documents thereof together with copies of the Organization Documents of such Loan Party annexed thereto;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Applicable Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(v) an opinion from (A) ▇▇▇▇▇▇ Price P.C., special New York counsel to the Loans Parties, (B) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Gervais LLP, special Ontario, British Columbia and Alberta counsel to the Loan Parties, and (C) local or other counsel in each of the jurisdictions listed on Schedule 4.02(a)(v) under the heading “Closing Date Opinions”, in each case as reasonably requested by the Applicable Administrative Agent, and, in the case of each of clauses (A) and (B), each in substantially the form previously provided to the Applicable Administrative Agent with such changes as are reasonably satisfactory to the Applicable Administrative Agent or as may arise from any changes in applicable law and, in the case of clause (C), in form and substance reasonably satisfactory to the Administrative Agent and the Lenders (it being understood that the Lenders shall be deemed to be satisfied with any such opinion if it is provided to them at least three (3) days prior to the Closing Date and if the Required Lenders shall not have objected thereto prior to the Closing Date);
(vi) a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transaction, from the chief financial officer of Holdings;
(vii) a certificate attesting to the compliance with clauses (b), (c), (d), (e), (k), (m), (n), (o) and (q) of this Section 4.02 on the Closing Date from a Responsible Officer of Holdings;
(viii) a Committed Loan Notice pursuant to Section 2.02 other than with respect to the Term A-2 Loans;
(ix) an Officer’s Certificate (as defined in the Existing Senior Subordinated Notes Indenture) certifying that the Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness under this Agreement on the Closing Date does not violate the Existing Senior Subordinated Notes Indenture and attaching thereto a copy of any notice or certificate delivered to the trustee under the Existing Senor Subordinated Notes Indenture in connection with such Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness; provided that for purposes of such certification 100% of the Commitments shall be deemed to have been borrowed on the Closing Date; and
(x) a counterpart of each of unless otherwise specified: (i) this Agreement (excluding the U.S. Perfection Certificate (as defined in the U.S. Security AgreementExhibits and Schedules attached thereto), the Fee Letter and the Guaranty, each duly executed and delivered by Holdings and each other U.S. Loan Party party the parties thereto, (ii) an official good standing certificate or its documentary equivalent dated a recent date with respect to Seller, each Guarantor and Program Administrator, (iii) certificates of the Canadian Perfection Certificate (as defined in secretary or an assistant secretary of Seller, each Guarantor and Program Administrator, together with copies of their respective Governing Documents, applicable corporate resolutions and incumbencies and signatures of officers who are executing the applicable Canadian Security Agreement)Repurchase Documents, executed by evidencing their respective authority with respect to the execution, delivery and performance thereof, and (iv) opinions from counsel to Seller, each Canadian Subsidiary Guarantor and Program Administrator, as applicable, with respect to (1) corporate matters, (2) enforceability, (3) non-contravention, no consents or approvals required other than those that have been obtained, (4) Investment Company Act matters, and (5) the applicability of Holdings Bankruptcy Code “securities contract” and SpinCo.“master netting agreement” safe harbors to this Agreement and the Guaranty;
(b) All Buyer has received payment from Seller of all fees and expenses required to be paid then payable by Seller under the Fee Letter and invoiced on or before the Closing Date shall have beenother Repurchase Documents, or concurrently with the closing of the Transaction shall be, paid in full in cash.as contemplated by Section 13.02;
(c) Prior Buyer has completed to or substantially concurrently with the initial Credit Extension its satisfaction such due diligence (other than with respect to the Term A-2 Loansincluding, Buyer’s “Know Your Customer” and Anti-Terrorism Laws diligence) on the Closing Date, the Refinancing shall have been consummated and modeling as it may require in full with all Liens in favor of the existing lenders being unconditionally releasedits discretion; the Applicable Administrative Agent shall have received a “pay-off” letter in form and substance reasonably satisfactory to the Applicable Administrative Agent with respect to all debt being refinanced in the Refinancing; and the Applicable Administrative Agent shall have received from any Person holding any Lien securing any such debt, such UCC and/or PPSA termination statements, mortgage releases, releases of assignments of leases and rents, releases of security interests in intellectual property and other instruments, in each case in proper form for recording, as the Applicable Administrative Agent shall have reasonably requested to release and terminate of record the Liens securing such debt.and
(d) (i) Prior Buyer has received approval from its internal credit committee and all other necessary approvals required for Buyer, to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Contribution, the Merger and the Transaction shall have been consummated in accordance with the Merger Agreement, the Separation Agreement and enter into this Agreement and in the sequence set forth in Schedule 4.01(c)(i); provided that no amendment, modification or waiver of any term of the Merger Agreement or the Separation Agreement (other than any such amendment, modification or waiver that is not materially adverse to the interests of the Lenders) shall be made or granted, as the case may be, without the prior written consent of the Arrangers (not to be unreasonably withheld or delayed) (it being understood that any change greater than 10.0% (including any price decrease greater than 10.0%) of the original consideration payable pursuant to the Merger Agreement in effect as of the date hereof will be deemed to be materially adverse to the interests of the Lenders and will require the prior written consent of the Arrangers); andconsummate Transactions hereunder.
Appears in 1 contract
Sources: Master Repurchase Agreement (AG Mortgage Investment Trust, Inc.)
Conditions Precedent to the Closing Date. The Closing Date, obligations of the obligation of each Lender Lenders to make the initial Credit Extensions of Term A Loans (other than Term A-2 Loans), Term B Loans and Revolving Credit Loans, and of the L/C Issuer Issuing Banks to issue Letters of Credit, shall, in Credit shall not become effective until the date (the “Closing Date”) on which each case, be subject to Section 11.25 and of the following conditions:conditions is satisfied (or waived in accordance with Section 11.5):
(a) The Administrative Agent’s receipt of On the followingClosing Date, each of which shall be originals(i) the Borrowers, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and each in form and substance reasonably satisfactory to the Applicable Administrative Agent and each Lender shall have signed a counterpart of this Agreement and shall have delivered (or transmitted by telecopy) the same to the Administrative Agent at its legal counsel:
Payment Office; and (iii) a Note executed by each applicable Borrower in favor there shall have been delivered to the Administrative Agent for the account of each Lender that has requested a Notethe same the appropriate Note or Notes, executed by each Borrower, in each case, in the amount, maturity and as otherwise provided herein;
(iib) each document necessary to satisfy the Collateral and Guaranty Requirements with respect to the Loan Parties and assets thereof in existence as of On the Closing Date, including those documents listed on Schedule 4.02(a)(ii) under the caption “Closing Date Matters”, together with any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Applicable Administrative Agent to vest in the Applicable Administrative Agent valid and subsisting first priority perfected Liens shall have received (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge Agreement)) on the properties purported to be subject to the Collateral Documents as of the Closing Date, enforceable against all third parties in accordance with their terms; provided that to the extent that after the Effective Date, Holdings or SpinCo or any of their respective Subsidiaries create or acquire any assets as to which a Lien is required to be created or perfected pursuant to the Collateral and Guaranty Requirements, Holdings shall promptly notify the Applicable Administrative Agent in reasonable detail in writing thereof, and the Applicable Administrative Agent may supplement Schedule 4.02(a)(ii), under the caption “Closing Date Matters”, consistent with the Collateral and Guaranty Requirements, to include any agreements, documents or actions of the types specified in the first parenthetical of the last paragraph of this Section 4.02;
(iii) a certificate of a Responsible Officer of each Loan Party certifying as to the Organization Documents thereof together with copies of the Organization Documents of such Loan Party annexed thereto;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Applicable Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(vi) an opinion from (A) ▇▇▇▇▇▇ Price P.C., special New York counsel to the Loans Parties, (B) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Gervais LLP, special Ontario, British Columbia and Alberta counsel to the Loan Parties, and (C) local or other counsel in each of the jurisdictions listed on Schedule 4.02(a)(v) under the heading “Closing Date Opinions”, in each case as reasonably requested by the Applicable Administrative Agent, and, in the case of each of clauses (A) and (B), each in substantially the form previously provided to the Applicable Administrative Agent with such changes as are reasonably satisfactory to the Applicable Administrative Agent or as may arise from any changes in applicable law and, in the case of clause (C)opinion, in form and substance reasonably satisfactory to the Administrative Agent, addressed to the Administrative Agent and each of the Lenders (it being understood that the Lenders shall be deemed to be satisfied with any such opinion if it is provided to them at least three (3) days prior to the Closing Date and if the Required Lenders shall not have objected thereto prior to the Closing Date);
(vi) a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transaction, from the chief financial officer of Holdings;
(vii) a certificate attesting to the compliance with clauses (b), (c), (d), (e), (k), (m), (n), (o) and (q) of this Section 4.02 on the Closing Date from a Responsible Officer of Holdings;
(viii) a Committed Loan Notice pursuant to Section 2.02 other than with respect to the Term A-2 Loans;
(ix) an Officer’s Certificate (as defined in the Existing Senior Subordinated Notes Indenture) certifying that the Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness under this Agreement on the Closing Date does not violate the Existing Senior Subordinated Notes Indenture and attaching thereto a copy of any notice or certificate delivered to the trustee under the Existing Senor Subordinated Notes Indenture in connection with such Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness; provided that for purposes of such certification 100% of the Commitments shall be deemed to have been borrowed on the Closing Date; and
(x) a counterpart of each of (i) the U.S. Perfection Certificate (as defined in the U.S. Security Agreement), executed by Holdings and each other U.S. Loan Party party thereto, (ii) the Canadian Perfection Certificate (as defined in the applicable Canadian Security Agreement), executed by each Canadian Subsidiary of Holdings and SpinCo.
(b) All fees and expenses required to be paid and invoiced on or before the Closing Date shall have been, or concurrently with the closing of the Transaction shall be, paid in full in cash.
(c) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on dated the Closing Date, from K▇▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇ LLP, special New York counsel to the Refinancing Borrowers, which opinion shall have been consummated cover the matters contained in full with all Liens in favor of the existing lenders being unconditionally released; the Applicable Administrative Agent shall have received a “pay-off” letter Exhibit F-1, and (ii) an opinion, in form and substance reasonably satisfactory to the Applicable Administrative Agent, addressed to the Administrative Agent with respect and each of the Lenders and dated the Closing Date, from A▇▇▇▇▇▇, special Bermuda counsel to all debt being refinanced the Borrowers, which opinion shall cover the matters contained in Exhibit F-2;
(c) On the Refinancing; and Closing Date, the Applicable Administrative Agent shall have received from any Person holding any Lien securing a certificate, signed by a Responsible Officer of each Borrower, in form and substance reasonably satisfactory to the Administrative Agent, certifying that (i) each of the representations and warranties set forth in this Agreement and in the other Credit Documents qualified as to materiality are true and correct and those not so qualified are true and correct in all material respects, each as of the Closing Date (except to the extent any such debtrepresentation or warranty is expressly stated to have been made as of a specific date, in which case such UCC and/or PPSA termination statements, mortgage releases, releases of assignments of leases representation or warranty is true and rents, releases of security interests correct (if qualified as to materiality) or true and correct in intellectual property and other instrumentsall material respects (if not so qualified), in each case as of such date), (ii) there is no pending or threatened litigation, bankruptcy or other proceeding in proper form which there is a reasonable likelihood of an adverse determination which could reasonably be expected to result in a Material Adverse Effect or which seeks to restrain, enjoin or prevent the closing of the credit facilities provided for recordingherein, (iii) no Default or Event of Default exists as of the Applicable Closing Date and (iv) there has not occurred or become known to the Administrative Agent since December 31, 2006, a change, occurrence or development that could reasonably be expected to have a Material Adverse Effect;
(d) On the Closing Date, the Administrative Agent shall have received a certificate of the secretary or an assistant secretary of each Borrower, in form and substance reasonably requested satisfactory to release and terminate of record the Liens securing such debt.
(d) Administrative Agent, certifying (i) Prior that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all amendments thereto of such Borrower, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the bylaws or similar governing document of such Borrower, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate, and (iii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of such Borrower authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to which it is a party, and as to the incumbency and genuineness of the signature of each officer of such Borrower executing this Agreement or any of the other Credit Documents, and attaching all such copies of the documents described above;
(e) All approvals, permits and consents of any Governmental Authorities (including all relevant Insurance Regulatory Authorities) or other Persons required in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby shall have been obtained (without the imposition of conditions that are not reasonably acceptable to the Administrative Agent), and all related filings, if any, shall have been made, and all such approvals, permits, consents and filings shall be in full force and effect and the Administrative Agent shall have received such copies thereof as it shall have reasonably requested and such documents and papers where appropriate to be certified by proper corporate or governmental authorities; all applicable waiting periods shall have expired without any adverse action being taken by any Governmental Authority having jurisdiction; and no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before, and no order, injunction or decree shall have been entered by, any court or other Governmental Authority, in each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or that is otherwise related to or substantially concurrently with arises out of, this Agreement, any of the other Credit Documents or the consummation of the transactions contemplated hereby or thereby, or that could reasonably be expected to have a Material Adverse Effect;
(f) Since December 31, 2006, both immediately before and after giving effect to the making of the initial Credit Extension Extensions (other than with respect if any), there shall not have occurred or become known to the Term A-2 LoansAdministrative Agent, a change, occurrence or development that could reasonably be expected to have a Material Adverse Effect;
(g) On the Closing Date, there shall exist no Default or Event of Default, and all representations and warranties made by each Borrower contained herein or in any other Credit Document shall be true and correct in all material respects (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date);
(h) The Borrowers shall have paid (i) to the Joint Arrangers, the fees specified in Annex B to the Commitment Letter to be paid to them on the Closing Date, (ii) to the ContributionAdministrative Agent, the Merger initial payment of the annual administrative fee described in Annex B to the Commitment Letter, and (iii) all other fees and reasonable expenses of the Joint Arrangers, the Administrative Agent and the Transaction shall have been consummated in accordance with the Merger Agreement, the Separation Agreement and this Agreement and in the sequence set forth in Schedule 4.01(c)(i); provided that no amendment, modification Lenders required hereunder or waiver of under any term of the Merger Agreement other Credit Document to be paid on or the Separation Agreement (other than any such amendment, modification or waiver that is not materially adverse prior to the interests of the Lenders) shall be made or granted, as the case may be, without the prior written consent of the Arrangers (not to be unreasonably withheld or delayed) (it being understood that any change greater than 10.0% Closing Date (including any price decrease greater than 10.0%legal fees and expenses) of the original consideration payable pursuant to the Merger Agreement in effect Commitment Letter;
(i) The Administrative Agent shall have received satisfactory confirmation from A.M. Best Company that the current Financial Strength Rating of each Material Insurance Subsidiary that has such a rating is “A-” or better;
(j) Holdings shall have delivered a Compliance Certificate calculated on a pro forma basis as of September 30, 2007 after giving effect to the date hereof will making of the initial Credit Extensions (if any);
(k) The Administrative Agent shall have received an Account Designation Letter from an Authorized Officer of each Borrower; and
(l) The Administrative Agent shall have received such other documents, certificates, opinions and instruments in connection with the transactions contemplated hereby as it shall have reasonably requested. Without limiting the generality of the provisions of Section 10.4, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be materially adverse satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the interests of the Lenders and will require the prior written consent of the Arrangers); andproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Allied World Assurance Co Holdings LTD)
Conditions Precedent to the Closing Date. The occurrence of the Closing Date, Date is subject to the obligation satisfaction by the Borrower of each Lender to make the initial Credit Extensions of Term A Loans (other than Term A-2 Loans), Term B Loans and Revolving Credit Loans, and of the L/C Issuer to issue Letters following conditions (unless waived in writing by the Administrative Agent (acting at the direction of Credit, shall, in each case, be subject to Section 11.25 and the following conditions:all Lenders)):
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles originals or “pdf” or similar electronic format copies (followed promptly following the Closing Date by originals) unless otherwise originals if so specified), each properly executed by a Responsible Officer of the signing Loan Party Borrower, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Applicable Administrative Agent and its legal counseleach of the Lenders:
(i) a duly executed counterparts of this Agreement, with originals sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) an original Note executed by each applicable the Borrower in favor of each Lender that has requested requesting a Note;
(iiiii) each document necessary to satisfy a pledge and security agreement (the “Security Agreement”), duly executed by the Borrower and Collateral Agent, together with:
(A) a proper financing statement in form appropriate for filing under the UCC of the State of organization of the Borrower, covering the Collateral and Guaranty Requirements described in the Security Agreement,
(B) with respect to the Borrower and the Project Company, certified copies of a recent search, satisfactory to them, in respect of all effective UCC financing statements and fixture filings and all judgment and tax lien filings, in each of the jurisdictions where assets of the Borrower or the Project Company are located, which have been made with respect to any personal or mixed property of the Borrower or the Project Company, together with copies of all such filings disclosed by such search, and such searches shall reveal no Liens on any of the assets of the Borrower or the Project Company except for Permitted Liens or Liens discharged on or prior to the Closing Date pursuant to documentation satisfactory to the Lenders (including UCC termination statements for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements or fixture or real property filings disclosed in such search); and
(C) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken;
(iv) a depositary agreement (the “Depositary Agreement”), duly executed by the Borrower, the Collateral Agent and the Depositary Bank;
(v) executed counterparts of the Pledge Agreement, duly executed by Holdings and the Collateral Agent, together with:
(A) original certificates and instruments representing any certificated securities collateral referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) a proper financing statement in form appropriate for filing under the UCC in the District of Columbia, covering the Collateral described in the Pledge Agreement,
(C) a statement of particulars in the required format to register the security interests under the Pledge Agreement at Companies House in England and Wales,
(D) with respect to Holdings, certified copies of a recent search, satisfactory to them, in respect of all effective Companies House filing histories and UCC financing statements and fixture filings and all judgment and tax lien filings, in each of the jurisdictions where assets of Holdings are located, which have been made with respect to any personal or mixed property of Holdings, together with copies of all such filings disclosed by such search, and such searches shall reveal no Liens on any of the assets of the Holdings except for Permitted HoldCo Liens or Liens discharged on or prior to the Closing Date pursuant to documentation satisfactory to the Lenders (including UCC termination statements for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements or fixture or real property filings disclosed in such search); and
(E) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge Agreement has been taken (other than the filing of the statement of particulars described in clause (C) above, which shall be filed within ten (10) days after the Closing Date);
(vi) a certificate from each of the Loan Parties Parties, signed by a Responsible Officer of each such Person and assets thereof dated the Closing Date, attaching and certifying the following:
(A) such Loan Party’s (and in existence the case of the Borrower, the Project Company’s) Organizational Documents (including a copy of the certificate of formation or other formation documents, including all amendments thereto, certified as of a recent date by the applicable Secretary of State or other applicable Governmental Authority), and certifying that such documents are in full force and effect as of the Closing Date, including those documents listed no term or condition thereof has been amended from the form attached to such certificate;
(B) a copy of one or more board or other resolutions or other authorizations from such Loan Party certified by a Responsible Officer of such Loan Party as being in full force and effect on Schedule 4.02(a)(ii) under the caption “Closing Date Matters”, together with any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Applicable Administrative Agent to vest in the Applicable Administrative Agent valid and subsisting first priority perfected Liens (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge Agreement)) on the properties purported to be subject to the Collateral Documents as of the Closing Date, enforceable against all third parties authorizing the execution, delivery and performance of this Agreement (in accordance with their terms; provided that to the extent that after case of the Effective Date, Holdings or SpinCo or any Borrower’s certificate) and of their respective Subsidiaries create or acquire any assets as each Transaction Document to which it is a Lien is required to be created or perfected pursuant to the Collateral and Guaranty Requirements, Holdings shall promptly notify the Applicable Administrative Agent in reasonable detail in writing thereof, party and the Applicable Administrative Agent may supplement Schedule 4.02(a)(ii), under the caption “Closing Date Matters”, consistent with the Collateral and Guaranty Requirements, to include any agreements, documents or actions consummation of the types specified in the first parenthetical of the last paragraph of this Section 4.02transactions contemplated therein and any instruments or agreements required hereunder or thereunder;
(iiiC) a certificate of a Responsible Officer of each Loan Party certifying as to incumbency including the Organization Documents thereof together with copies names and true signatures of the Organization Documents incumbent officers of such Loan Party annexed thereto;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Applicable Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and sign the other Loan Transaction Documents to which such Loan Party is a party;
(vD) an opinion from a certificate, certified as a recent date by the Delaware Secretary of State, certifying that the Borrower is validly existing and in good standing in its jurisdiction of formation;
(AE) ▇▇▇▇▇▇ Price P.C.a certificate, special New York counsel certified as a recent date by the Texas Secretary of State, certifying that the Project Company is validly existing and in good standing in its jurisdiction of formation; and
(F) a certificate of another officer as to the Loans Parties, incumbency and specimen signature of the Responsible Officer executing the certificate pursuant to this clause (Bvii);
(vii) ▇the favorable opinions of ▇▇▇▇▇ ▇▇▇▇▇▇ Gervais LLP, special OntarioNew York, British Columbia Delaware and Alberta English counsel to the Loan Parties, Parties addressed to and (C) local or other counsel in each of the jurisdictions listed on Schedule 4.02(a)(v) under the heading “Closing Date Opinions”, in each case as reasonably requested by the Applicable Administrative Agent, and, in the case of each of clauses (A) and (B), each in substantially the form previously provided to the Applicable Administrative Agent with such changes as are reasonably satisfactory to the Applicable Administrative Agent or as may arise from any changes in applicable law and, in the case of clause (C), in form and substance reasonably satisfactory to the Administrative Agent and the Lenders (it being understood that the Lenders shall be deemed to be satisfied with any such opinion if it is provided to them at least three (3) days prior to the Closing Date and if the Required Lenders shall not have objected thereto prior to the Closing Date);
(vi) a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transaction, from the chief financial officer of Holdings;
(vii) a certificate attesting to the compliance with clauses (b), (c), (d), (e), (k), (m), (n), (o) and (q) of this Section 4.02 on the Closing Date from a Responsible Officer of Holdingseach Lender;
(viii) a Committed Loan Notice certificate signed by a Responsible Officer of the Borrower certifying that (x) the conditions in Section 4.01 are satisfied, or to the extent that documents are to be delivered to the Administrative Agent, that such documents have been delivered (without certifying that such documents are in form and substance satisfactory to the Administrative Agent), (y) the representations and warranties made by it pursuant to Section 2.02 other than with Article V are true and correct and (z) the Borrower has not received written notice of, and has no Knowledge of, any Event of Loss in respect to of the Term A-2 LoansProject;
(ix) an Officer’s Certificate (as defined in the Existing Senior Subordinated Notes Indenture) a certificate signed by a Responsible Officer of Holdings certifying that the Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness under this Agreement on the Closing Date does not violate the Existing Senior Subordinated Notes Indenture representations and attaching thereto a copy of any notice or certificate delivered warranties made by it pursuant to the trustee under the Existing Senor Subordinated Notes Indenture in connection with such Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness; provided that for purposes of such certification 100% of the Commitments shall be deemed to have been borrowed on the Closing Date; andPledge Agreement are true and correct;
(x) a counterpart certificate of the Borrower attesting to the Solvency of the Borrower before and after giving effect to the Transactions contemplated to occur on the Closing Date, from a Responsible Financial Officer of the Borrower, substantially in the form of Exhibit H; and
(xi) duly executed counterparts of the Intercreditor Agreement, with originals sufficient in number for distribution to the Administrative Agent, Collateral Agent and the Borrower;
(b) The Administrative Agent’s receipt of the following, each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) the U.S. Perfection Certificate Construction Budget and Schedule (certified by a Responsible Officer of the Borrower as, to the Knowledge of the Borrower, based on reasonable assumptions as defined in to the U.S. Security Agreementlegal and factual matters material to the estimates set forth therein, and fairly representing the Borrower’s expectations as to the financial performance of the Project over the term of the Loans), executed by Holdings and each other U.S. Loan Party party thereto, ;
(ii) the Canadian Perfection Certificate Technical and Environmental Due Diligence Report favorably reviewing (as defined in A) the applicable Canadian Security Agreement)technical and economic feasibility of the Project and the environmental compliance and environmental risks relating to the Project; (B) the reasonableness of the Construction Budget and Schedule, executed by each Canadian Subsidiary of Holdings the EPC Contracts and SpinCo.the assumptions related to the costs and operating performance of the Project; and (C) the reasonableness of the technical assumptions underlying the Financial Model;
(biii) All fees the unaudited financial statements of the Project Company, consisting of the balance sheet of the Project Company and expenses required to be paid the related statements of income and invoiced cash flows as of February 28, 2019;
(iv) the Financial Model (satisfying the Target Debt Balance and Debt Service Coverage Ratio); and
(v) copies of each of the Market Consultant Report and the Insurance Consultant’s Report, in each case, together, if necessary, with reliance letters in respect of the same authorizing the Administrative Agent’s, the Arrangers’ and the Lenders’ reliance on or before such reports, dated the Closing Date shall have been, or concurrently with the closing of the Transaction shall be, paid in full in cashDate.
(c) Prior With respect to the Material Project Documents, the Administrative Agent shall have received:
(i) true, complete and correct copies of each Material Project Document as of the Closing Date and any existing supplements or substantially concurrently with amendments thereto, and such documents shall have been duly authorized, executed and delivered by the initial Credit Extension Project Company and, to the Knowledge of the Borrower, the other parties thereto and shall be in full force and effect on the Closing Date and shall be certified by a Responsible Officer of the Borrower as, to its Knowledge, being true, complete and correct copies and in full force and effect;
(ii) a certificate from a Responsible Officer of the Borrower, satisfactory in form and substance to the Administrative Agent and the Lenders, certifying that (A) all conditions precedent to the performance of the Project Company under each Material Project Document have been satisfied or waived (other than with respect conditions precedent that are not required to be satisfied until a later date); (B) all performance security required to be delivered under each Material Project Document as of the Closing Date has been so delivered and (C) no party to any such Material Project Document is, or but for the passage of time or giving of notice or both will be, in breach of any obligation thereunder;
(iii) a certificate from the Lenders’ Technical and Environmental Consultant confirming that (A) the Technical and Environmental Due Diligence Report and all informational materials contained therein are, as of the date of such Technical and Environmental Due Diligence Report, and are, as of the Closing Date true, correct and complete in all material respects based upon the information furnished to the Term A-2 Loans) on Lenders’ Technical and Environmental Consultant as of the Closing Date, (B) since the Refinancing shall have been consummated in full with all Liens in favor date of the existing lenders being unconditionally released; the Applicable Administrative Agent shall have received a “pay-off” letter in form Technical and substance reasonably satisfactory Environmental Due Diligence Report, there has been no material change to the Applicable Administrative Agent with respect Technical and Environmental Due Diligence Report or to all debt being refinanced in the Refinancing; and the Applicable Administrative Agent shall have received from any Person holding any Lien securing any such debt, such UCC and/or PPSA termination statements, mortgage releases, releases of assignments of leases and rents, releases of security interests in intellectual property and other instruments, in each case in proper form for recording, as the Applicable Administrative Agent shall have reasonably requested to release and terminate of record the Liens securing such debt.
(d) (i) Prior to or substantially concurrently with the initial Credit Extension (conditions set forth therein other than with respect as disclosed to the Term A-2 LoansLenders in such certificate and (C) on the Closing Date, the Contribution, the Merger and the Transaction shall have been consummated in accordance with the Merger Agreement, the Separation Agreement and this Agreement and in the sequence set forth in Schedule 4.01(c)(i); provided that no amendment, modification or waiver of any term of the Merger Agreement or the Separation Agreement (other than any such amendment, modification or waiver that is not materially adverse to the interests best of the Lenders) shall be made ’ Technical and Environmental Consultant’s knowledge, no act, event or grantedcondition has occurred that would make any information or statement contained in the Technical and Environmental Due Diligence Report untrue, as the case may be, without the prior written consent of the Arrangers (not to be unreasonably withheld incorrect or delayed) (it being understood that misleading in any change greater than 10.0% (including any price decrease greater than 10.0%) of the original consideration payable pursuant to the Merger Agreement in effect as of the date hereof will be deemed to be materially adverse to the interests of the Lenders and will require the prior written consent of the Arrangers); andmaterial respect.
Appears in 1 contract
Conditions Precedent to the Closing Date. The obligation of the Lenders to make Loans and Advances hereunder on the Closing Date is subject solely to satisfaction (or waiver) of the following conditions precedent, and upon satisfaction (or waiver) of such conditions each Lender shall make all of its required Loans and Advances hereunder on the Closing Date, the obligation of each Lender to make the initial Credit Extensions of Term A Loans (other than Term A-2 Loans), Term B Loans and Revolving Credit Loans, and of the L/C Issuer to issue Letters of Credit, shall, in each case, be subject to Section 11.25 and the following conditions:
(a) The Administrative Agent’s receipt of executed counterparts of this Agreement (including exhibits and schedules), which shall be originals or PDF copies unless otherwise specified, properly executed by a duly authorized officer of the Borrower, dated the Closing Date, and in form and substance satisfactory to the Agent and each of the Lenders.
(b) As of the Closing Date, except as disclosed in the Public Filings, there shall have occurred no event or circumstance that could reasonably be expected to result in a Material Adverse Change since December 31, 2024.
(c) All fees due to the Agent, the Arrangers and the Lenders shall have been paid, and all expenses to be paid or reimbursed to the Agent and the Arrangers that have been invoiced at least three (3) Business Days prior to the Closing Date shall have been paid by or at the direction of the Borrower (provided that the accrued fees and expenses of counsel to the Agent shall be paid directly by the Borrower).
(d) The Borrower shall have provided to the Agent, (i) at least three (3) Business Days prior to the Closing Date, the documentation and other information required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the U.S.A. Patriot Act, to the extent requested by the Agent or any Lender at least ten Business Days prior to the Closing Date and (ii) at least three (3) Business Days prior to the Closing Date, 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 to the extent that such Beneficial Ownership Certification was requested at least five (5) Business Days prior to the Closing Date.
(e) The Agent shall have received on or before the Closing Date the following, each of which shall be originalsdated such day, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and each in form and substance reasonably satisfactory to the Applicable Administrative Agent and its legal counsel(except for the Notes) in sufficient copies for each Lender:
(i) a A Note executed by each applicable Borrower in favor of for each Lender that has requested a Note;Note pursuant to Section 2.16, including, if requested, a Swing Line Note for the Swing Line Lender.
(ii) each document Certified copies of the resolutions of the Board of Directors of the Borrower approving this Agreement and the Notes, and of all documents evidencing other necessary to satisfy the Collateral corporate action and Guaranty Requirements governmental approvals, if any, with respect to the Loan Parties and assets thereof in existence as of the Closing Date, including those documents listed on Schedule 4.02(a)(ii) under the caption “Closing Date Matters”, together with any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Applicable Administrative Agent to vest in the Applicable Administrative Agent valid and subsisting first priority perfected Liens (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge Agreement)) on the properties purported to be subject to the Collateral Documents as of the Closing Date, enforceable against all third parties in accordance with their terms; provided that to the extent that after the Effective Date, Holdings or SpinCo or any of their respective Subsidiaries create or acquire any assets as to which a Lien is required to be created or perfected pursuant to the Collateral and Guaranty Requirements, Holdings shall promptly notify the Applicable Administrative Agent in reasonable detail in writing thereof, this Agreement and the Applicable Administrative Agent may supplement Schedule 4.02(a)(ii), under the caption “Closing Date Matters”, consistent with the Collateral and Guaranty Requirements, to include any agreements, documents or actions of the types specified in the first parenthetical of the last paragraph of this Section 4.02;Notes.
(iii) a A certificate of a Responsible Officer the Secretary or an Assistant Secretary of each Loan Party certifying as to the Organization Documents thereof together with copies of the Organization Documents Borrower and Subsidiary Guarantor certifying the names and true signatures of the officers of such Loan Party annexed thereto;authorized to sign each Loan Document to which it is a party.
(iv) such certificates A good standing certificate as of resolutions or other action, incumbency certificates and/or other certificates a recent date for each of Responsible Officers the Borrower and Subsidiary Guarantor from the Secretary of each Loan Party as State of the Applicable Administrative Agent may reasonably require evidencing the identity, authority and capacity State 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;Delaware.
(v) An officer’s certificate from an opinion from executive officer of the Borrower regarding satisfaction of the conditions precedent set forth in Sections 3.01 and 3.02.
(vi) Favorable opinions of (A) ▇▇▇▇▇ ▇▇▇▇▇ Price P.C.LLP, special New York counsel to for the Loans PartiesBorrower, and (B) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Gervais LLP▇▇▇▇▇, special Ontario, British Columbia and Alberta counsel to the Loan Parties, and (C) local or other counsel in each General Counsel of the jurisdictions listed on Schedule 4.02(a)(v) under the heading “Closing Date Opinions”Borrower, in each case as reasonably requested by the Applicable Administrative Agent, and, in the case of each of clauses (A) and (B), each in substantially the form previously provided to the Applicable Administrative Agent with such changes as are reasonably satisfactory to the Applicable Administrative Agent or as may arise from any changes in applicable law and, in the case of clause (C)case, in form and substance reasonably satisfactory acceptable to the Administrative Agent and the Lenders (it being understood that the Lenders shall be deemed to be satisfied with any such opinion if it is provided to them at least three (3) days prior to the Closing Date and if the Required Lenders shall not have objected thereto prior to the Closing Date);
(vi) a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transaction, from the chief financial officer of Holdings;Agent.
(vii) The Subsidiary Guaranty, executed by a certificate attesting to duly authorized officer of the compliance with clauses (b)Subsidiary Guarantor, (c), (d), (e), (k), (m), (n), (o) and (q) dated as of this Section 4.02 on the Closing Date from a Responsible Officer Date, and substantially in the form of Holdings;Exhibit E hereto.
(viii) a Committed Loan Notice pursuant to Section 2.02 Certified copies of the consents of the sole manager of the Subsidiary Guarantor approving the Subsidiary Guaranty, and of all documents evidencing other than necessary corporate action and governmental approvals, if any, with respect to the Term A-2 Loans;
(ix) an Officer’s Certificate (as defined in the Existing Senior Subordinated Notes Indenture) certifying that the Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness under this Agreement on the Closing Date does not violate the Existing Senior Subordinated Notes Indenture and attaching thereto a copy of any notice or certificate delivered to the trustee under the Existing Senor Subordinated Notes Indenture in connection with such Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness; provided that for purposes of such certification 100% of the Commitments shall be deemed to have been borrowed on the Closing Date; and
(x) a counterpart of each of (i) the U.S. Perfection Certificate (as defined in the U.S. Security Agreement), executed by Holdings and each other U.S. Loan Party party thereto, (ii) the Canadian Perfection Certificate (as defined in the applicable Canadian Security Agreement), executed by each Canadian Subsidiary of Holdings and SpinCoGuaranty.
(bf) All fees and expenses required to be paid and invoiced on or before the Closing Date shall have been, or concurrently with the closing of the Transaction shall be, paid in full in cash.
(c) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Refinancing shall have been consummated in full with all Liens in favor of the existing lenders being unconditionally released; the Applicable Administrative The Agent shall have received a “pay-off” letter evidence that the Borrower has terminated the Existing Credit Agreement and repaid in form and substance reasonably satisfactory to the Applicable Administrative Agent with respect to full all debt being refinanced in the Refinancing; and the Applicable Administrative obligations owing thereunder.
(g) The Agent shall have received from any Person holding any Lien securing any such debt, such UCC and/or PPSA termination statements, mortgage releases, releases of assignments of leases and rents, releases of security interests in intellectual property and other instruments, in each case in proper form for recording, as evidence that the Applicable Administrative Agent FCS Term Facility shall have reasonably requested to release and terminate of record the Liens securing such debt.
(d) (i) Prior to or become effective substantially concurrently simultaneously with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Contribution, the Merger and the Transaction shall have been consummated in accordance with the Merger Agreement, the Separation Agreement and this Agreement and in the sequence set forth in Schedule 4.01(c)(i); provided that no amendment, modification or waiver of any term of the Merger Agreement or the Separation Agreement (other than any such amendment, modification or waiver that is not materially adverse to the interests of the Lenders) shall be made or granted, as the case may be, without the prior written consent of the Arrangers (not to be unreasonably withheld or delayed) (it being understood that any change greater than 10.0% (including any price decrease greater than 10.0%) of the original consideration payable pursuant to the Merger Agreement in effect as of the date hereof will be deemed to be materially adverse to the interests of the Lenders and will require the prior written consent of the Arrangers); and.
Appears in 1 contract
Conditions Precedent to the Closing Date. The effectiveness of this Agreement is subject to and conditional upon the prior fulfilment of the following conditions to the satisfaction of the Administrative Agent and the Lenders:
13.1.1 On or prior to 4:00 p.m. (Toronto time) on the Banking Day before the Closing Date, the obligation of Administrative Agent shall have received from the Borrower, in sufficient quantities to provide one copy to each Lender and to make the initial Credit Extensions of Term A Loans (other than Term A-2 Loans), Term B Loans and Revolving Credit Loans, and of the L/C Issuer to issue Letters of Credit, shall, in each case, be subject to Section 11.25 and the following conditions:
(a) The Administrative Agent’s receipt of , the following, each dated as of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of date satisfactory to the signing Loan Party Lenders and each in form and substance reasonably satisfactory to the Applicable Administrative Agent and its legal counselLenders:
(i) a Note 13.1.1.1 this Agreement duly executed by each applicable Borrower in favor of each Lender that has requested a Notethe Obligors, the Lenders and the Administrative Agent;
(ii) each document necessary to satisfy 13.1.1.2 the Collateral and Guaranty Requirements with respect to Intercreditor Agreement duly executed by the Loan Parties and assets thereof in existence as of Obligors, the Closing DateLenders, including those documents listed on Schedule 4.02(a)(ii) under the caption “Closing Date Matters”, together with any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Applicable Administrative Agent to vest in the Applicable Administrative Agent valid and subsisting first priority perfected Liens (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge Agreement)) on the properties purported to be subject to the Collateral Documents as of the Closing Date, enforceable against all third parties in accordance with their terms; provided that to the extent that after the Effective Date, Holdings or SpinCo or any of their respective Subsidiaries create or acquire any assets as to which a Lien is required to be created or perfected pursuant to the Collateral and Guaranty Requirements, Holdings shall promptly notify the Applicable Administrative Agent in reasonable detail in writing thereof, Hedge Providers and the Applicable Administrative Agent may supplement Schedule 4.02(a)(ii), under the caption “Closing Date Matters”, consistent with the Collateral and Guaranty Requirements, to include any agreements, documents or actions of the types specified in the first parenthetical of the last paragraph of this Section 4.02Agent;
(iii) a certificate of a Responsible Officer of each Loan Party certifying as to the Organization Documents thereof together with 13.1.1.3 certified copies of the Organization Documents of such Loan Party annexed thereto;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers charter and by-laws of each Loan Party as Obligor and of all documents and resolutions evidencing necessary corporate action on their part approving and authorizing the Applicable Administrative Agent may reasonably require evidencing the identityexecution, authority delivery and capacity performance 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 partyparty and evidencing any other necessary corporate action with respect to this Agreement, the other Loan Documents and the instruments, certificates or other documents contemplated herein, and approving and authorizing the manner in which and by whom the foregoing documents are to be executed and delivered;
(v) an opinion from (A) ▇▇▇▇▇▇ Price P.C.13.1.1.4 a certificate of status, special New York counsel compliance, good standing or like certificate with respect to each Obligor issued by the appropriate government officials of the jurisdiction of its incorporation or amalgamation, as applicable, and each jurisdiction in which they carry on business if applicable;
13.1.1.5 certified copies of the Required Approvals, if any;
13.1.1.6 a certificate of a Responsible Officer of each Obligor certifying the names and true signature of their officers authorized to sign this Agreement, the other Loan Documents and any other documents or certificates to be delivered pursuant to this Agreement;
13.1.1.7 certificates of insurance in accordance with the requirements of Section 14.4;
13.1.1.8 copies of any existing Phase 1 environmental assessment and environmental audits in respect of all Material Real Property owned or leased by the Obligors which have not previously been delivered to the Loans PartiesAdministrative Agent;
13.1.1.9 the Guarantees and Security Documents duly authorized, executed and delivered by each of the Obligors parties hereto to the extent required by the Collateral and Guarantee Requirement to the extent such Security Documents have not previously been delivered to the Administrative Agent;
13.1.1.10 a certificate of a Responsible Officer of the Borrower certifying that, on the Closing Date, the Borrower is in compliance with the financial ratios set forth in Section 14.2.1;
13.1.1.11 certified copy of the Term Loan Agreement including all amendments thereto;
13.1.1.12 the results of Lien searches of all filings, registrations or recordings of or with respect to all the Assets (Bother than real property) of the Obligors (i) for Canadian Obligors, in each jurisdiction in which their respective Assets are located or they have an office (which Assets in such jurisdiction have a value exceeding $1,000,000), and (ii) for US Obligors, in their jurisdiction of organization, in each case, together with such other documents that the Lenders shall reasonably require evidencing, to the entire satisfaction of the Lenders, that all such Assets are free and clear of all Liens, other than Permitted Liens;
13.1.1.13 a favourable opinion of S▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Gervais LLP, special Ontario, British Columbia and Alberta Canadian counsel to the Loan PartiesBorrower, and (C) local or other S▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & B▇▇▇▇▇▇▇ LLP, United States counsel in each of the jurisdictions listed on Schedule 4.02(a)(v) under the heading “Closing Date Opinions”, in each case as reasonably requested by the Applicable Administrative Agent, and, in the case of each of clauses (A) and (B), each in substantially the form previously provided to the Applicable Administrative Agent with such changes as are reasonably satisfactory to the Applicable Administrative Agent or as may arise from any changes in applicable law and, in the case of clause (C)Borrower, in form and substance reasonably acceptable to the Administrative Agent and the Lenders, addressed to the Administrative Agent, the Lenders and L▇▇▇▇▇▇’ Counsel; and
13.1.1.14 a favourable report of L▇▇▇▇▇▇’ Counsel, addressed to the Administrative Agent and to each Lender;
13.1.2 each of the Security Documents or financing statements, notices or applications in respect thereof, shall have been duly registered, filed and recorded against all Material Real Property of each Obligor, if any, and in all other places and in all jurisdictions which the Lenders shall require, to the entire satisfaction of the Lenders and Lenders’ Counsel and the Administrative Agent shall have received evidence satisfactory to the Lenders and Lenders’ Counsel of such registrations, recordings or filings and that the Security Interests thereunder constitute valid, effective and perfected first priority Security Interests, subject only to Permitted Liens, except with respect to the delivery of Security Documents and related confirmation of title insurance in respect of Material Real Property for those Obligors that are becoming Obligors as of the Closing Date, in which case such documents shall be delivered, unless otherwise agreed by the Administrative Agent, within 180 days following Closing;
13.1.3 receipt by the Administrative Agent of all estoppel letters reasonably required by the Administrative Agent in accordance with the requirements of Schedule 15.1, to the extent not previously delivered to the Administrative Agent;
13.1.4 receipt by each Lender of all information and documents required by such Lender to meet its obligations with respect to “know your customer” rules and rules under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and its regulations (or similar Applicable Law);
13.1.5 no event has occurred which constitutes a Material Adverse Effect since June 30, 2021;
13.1.6 the commitment fees, letter of credit fronting fees and Letter of Credit Commissions payable with respect to the Facility B Credit under the Original Credit Agreement for the period from and including July 1, 2021 to the Closing Date and any other amounts payable with respect to the Facility B Credit shall have been paid or be paid out of the proceeds of the initial Advance under Facility A Credit;
13.1.7 all amounts due and payable on or before the initial Advance by the Borrower pursuant to this Agreement and the other Loan Documents, including reasonable out of pocket costs, work fees and reasonable legal fees of the Administrative Agent and the Lenders (it being understood that the Lenders shall be deemed to be satisfied with any such opinion if it is provided to them at least three (3) days prior to the Closing Date and if the Required Lenders shall not have objected thereto prior to the Closing Date);
(vi) a certificate attesting to the Solvency including reasonable legal fees of Holdings and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transaction, from the chief financial officer of Holdings;
(vii) a certificate attesting to the compliance with clauses (bLenders’ Counsel), (c), (d), (e), (k), (m), (n), (o) and (q) of this Section 4.02 on the Closing Date from a Responsible Officer of Holdings;
(viii) a Committed Loan Notice pursuant to Section 2.02 other than with respect to the Term A-2 Loans;
(ix) an Officer’s Certificate (as defined in the Existing Senior Subordinated Notes Indenture) certifying that the Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness under this Agreement on the Closing Date does not violate the Existing Senior Subordinated Notes Indenture and attaching thereto a copy of any notice shall have been paid or certificate delivered to the trustee under the Existing Senor Subordinated Notes Indenture in connection with such Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness; provided that for purposes of such certification 100% be paid out of the Commitments shall be deemed to have been borrowed on proceeds of the Closing Dateinitial Advance under Facility A Credit; and
(x) 13.1.8 receipt by each Lender of a counterpart five-year consolidated financial forecast of each of (i) the U.S. Perfection Certificate (as defined in the U.S. Security Agreement), executed by Holdings and each other U.S. Loan Party party thereto, (ii) the Canadian Perfection Certificate (as defined in the applicable Canadian Security Agreement), executed by each Canadian Subsidiary of Holdings and SpinCoBorrower.
(b) All fees and expenses required to be paid and invoiced on or before the Closing Date shall have been, or concurrently with the closing of the Transaction shall be, paid in full in cash.
(c) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Refinancing shall have been consummated in full with all Liens in favor of the existing lenders being unconditionally released; the Applicable Administrative Agent shall have received a “pay-off” letter in form and substance reasonably satisfactory to the Applicable Administrative Agent with respect to all debt being refinanced in the Refinancing; and the Applicable Administrative Agent shall have received from any Person holding any Lien securing any such debt, such UCC and/or PPSA termination statements, mortgage releases, releases of assignments of leases and rents, releases of security interests in intellectual property and other instruments, in each case in proper form for recording, as the Applicable Administrative Agent shall have reasonably requested to release and terminate of record the Liens securing such debt.
(d) (i) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Contribution, the Merger and the Transaction shall have been consummated in accordance with the Merger Agreement, the Separation Agreement and this Agreement and in the sequence set forth in Schedule 4.01(c)(i); provided that no amendment, modification or waiver of any term of the Merger Agreement or the Separation Agreement (other than any such amendment, modification or waiver that is not materially adverse to the interests of the Lenders) shall be made or granted, as the case may be, without the prior written consent of the Arrangers (not to be unreasonably withheld or delayed) (it being understood that any change greater than 10.0% (including any price decrease greater than 10.0%) of the original consideration payable pursuant to the Merger Agreement in effect as of the date hereof will be deemed to be materially adverse to the interests of the Lenders and will require the prior written consent of the Arrangers); and
Appears in 1 contract
Conditions Precedent to the Closing Date. The Closing Date, the obligation of each Lender to make execute this Agreement and to deem the initial Credit Extensions Closing Date to have occurred is subject to the fulfillment, to the satisfaction of Term A Loans (other than Term A-2 Loans)Lender, Term B Loans and Revolving Credit Loans, and of each of the L/C Issuer to issue Letters of Credit, shall, in each case, be subject to Section 11.25 and the following conditionsconditions precedent set forth below:
(a) The Administrative Agent’s receipt the Closing Date shall occur on or before February 21, 2002;
(b) Lender shall have received all UCC financing statements describing the Collateral or any part thereof, United States Patent and Trademark Office filings, United States Copyright Office filings, fixture filings and related documents regarding the Collateral (as applicable) as reasonably required by Lender, duly executed by the applicable Borrowers, and Lender shall have received searches reflecting that such filings are of record;
(c) Lender shall have received each of the followingfollowing documents, each of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and each in form and substance reasonably satisfactory to the Applicable Lender and Administrative Agent Borrower, duly executed, and its legal counseleach such document shall be in full force and effect:
(i) a Note executed by each applicable Borrower in favor of each Lender that has requested a Notethe Copyright Security Agreement;
(ii) each document necessary to satisfy the Collateral and Guaranty Requirements with respect to the Loan Parties and assets thereof in existence as of the Closing Date, including those documents listed on Schedule 4.02(a)(ii) under the caption “Closing Date Matters”, together with any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Applicable Administrative Agent to vest in the Applicable Administrative Agent valid and subsisting first priority perfected Liens (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge Agreement)) on the properties purported to be subject to the Collateral Documents as of the Closing Date, enforceable against all third parties in accordance with their terms; provided that to the extent that after the Effective Date, Holdings or SpinCo or any of their respective Subsidiaries create or acquire any assets as to which a Lien is required to be created or perfected pursuant to the Collateral and Guaranty Requirements, Holdings shall promptly notify the Applicable Administrative Agent in reasonable detail in writing thereof, and the Applicable Administrative Agent may supplement Schedule 4.02(a)(ii), under the caption “Closing Date Matters”, consistent with the Collateral and Guaranty Requirements, to include any agreements, documents or actions of the types specified in the first parenthetical of the last paragraph of this Section 4.02Disbursement Letter;
(iii) a certificate of a Responsible Officer of each Loan Party certifying as to the Organization Documents thereof together with copies of the Organization Documents of such Loan Party annexed theretoDue Diligence Letter;
(iv) such the Fee Letter;
(v) the Officers' Certificate;
(vi) the Patent Security Agreement;
(vii) the Stock Pledge Agreement, together with all certificates representing the shares of resolutions or Stock pledged thereunder, together with blank stock powers (other actionthan the certificate of Kroll Associates (Asia) Limited, incumbency certificates and/or other certificates which shall be provided t▇ ▇▇▇der within 20 days of Responsible Officers the Closing Date);
(viii) the Trademark Security Agreement;
(ix) the Intercompany Subordination Agreement; and
(x) the Intercreditor Agreement;
(d) Lender shall have received a certificate from the Secretary of each Loan Party as Borrower (i) attesting to the Applicable Administrative Agent may reasonably require evidencing the identityresolutions of such Borrower's Board of Directors authorizing its execution, authority delivery, and capacity performance of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party Borrower is a partyparty and authorizing specific officers of such Borrower to execute the same and (ii) certifying the names and true signatures of the officers of such Borrower authorized to sign each Loan Document;
(ve) an opinion from Lender shall have received copies of each Borrower's Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Borrower;
(Af) Lender shall have received a certificate of status with respect to each Borrower, dated within 30 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Borrower, which certificate shall indicate that such Borrower is in good standing in such jurisdiction;
(g) Lender shall have received certificates of status with respect to each Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Borrower) in which its failure to be duly qualified or licensed is reasonably likely to result in a Material Adverse Change, which certificates shall indicate that such Borrower is in good standing in such jurisdictions;
(h) Lender shall have received a certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be reasonably satisfactory to Lender and its counsel;
(i) Lender shall have received a true and complete copy of each Borrower's Directors' and Officers' insurance policy with AIG, and such insurance policy shall be reasonably satisfactory in all respects to Lender and its counsel. Lender shall have been furnished with evidence, reasonably satisfactory in all respects to Lender and its counsel, that Borrowers have satisfied or have accrued for all deductible requirements under such insurance policy with respect to shareholder class action lawsuits;
(j) Lender shall have received Collateral Access Agreements with respect to the following locations: (i) 530 Lockport Street, Plainfield, Illinois 60544, and (ii) 100 East S▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇, ▇▇ Price P.C., special New York counsel to the Loans Parties, ▇▇▇▇▇;
(B▇) ▇▇▇der shall h▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Gervais LLP, special Ontario, British Columbia ▇▇ ▇▇▇▇▇▇▇▇▇' ▇▇unsel and Alberta Borrowers' local counsel to the Loan Parties, and (C) local or other counsel in each of the jurisdictions listed on Schedule 4.02(a)(v) under the heading “Closing Date Opinions”, in each case as reasonably requested by the Applicable Administrative Agent, and, in the case of each of clauses (A) and (B), each in substantially the form previously provided to the Applicable Administrative Agent with such changes as are reasonably satisfactory to the Applicable Administrative Agent or as may arise from any changes in applicable law and, in the case of clause (C), in form and substance reasonably satisfactory to the Administrative Agent Lender and the Lenders (it being understood that the Lenders shall be deemed to be satisfied with any such opinion if it is provided to them at least three (3) days prior to the Closing Date and if the Required Lenders shall not have objected thereto prior to the Closing Date)Lender's local counsel;
(vil) Lender shall have received a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transaction, from the chief financial officer of HoldingsParent that all tax returns required to be filed by Borrowers have been timely filed and all taxes upon Borrowers or their properties, assets, income, and franchises (including Real Property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(viim) a certificate attesting to Borrowers shall have the compliance with clauses (b), (c), (d), (e), (k), (m), (n), (o) and (q) of this Section 4.02 on the Closing Date from a Responsible Officer of HoldingsRequired Availability;
(viiin) a Committed Loan Notice pursuant to Section 2.02 other than with respect to Lender shall have completed its legal and collateral due diligence (the Term A-2 Loans;
(ix) an Officer’s Certificate (as defined in the Existing Senior Subordinated Notes Indenture) certifying that the Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) results of Indebtedness under this Agreement on the Closing Date does not violate the Existing Senior Subordinated Notes Indenture and attaching thereto a copy of any notice or certificate delivered to the trustee under the Existing Senor Subordinated Notes Indenture in connection with such Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness; provided that for purposes of such certification 100% of the Commitments which shall be deemed satisfactory to have been borrowed on the Closing Date; and
(x) a counterpart of each of (i) the U.S. Perfection Certificate (as defined in the U.S. Security AgreementLender), executed by Holdings including, but not limited to, a collateral audit and each other U.S. Loan Party party thereto, (ii) the Canadian Perfection Certificate (as defined in the applicable Canadian Security Agreement), executed by each Canadian Subsidiary review of Holdings Borrowers' books and SpinCo.
(b) All fees records and expenses required verification of Borrowers' representations and warranties to be paid and invoiced on or before the Closing Date shall have been, or concurrently with the closing of the Transaction shall be, paid in full in cash.
(c) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing DateLender, the Refinancing results of which shall have been consummated in full with all Liens in favor of the existing lenders being unconditionally released; the Applicable Administrative Agent shall have received a “pay-off” letter in form and substance reasonably be satisfactory to the Applicable Administrative Agent with respect to all debt being refinanced in the Refinancing; and the Applicable Administrative Agent shall have received from any Person holding any Lien securing any such debt, such UCC and/or PPSA termination statements, mortgage releases, releases of assignments of leases and rents, releases of security interests in intellectual property and other instruments, in each case in proper form for recording, as the Applicable Administrative Agent shall have reasonably requested to release and terminate of record the Liens securing such debt.
(d) (i) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Contribution, the Merger and the Transaction shall have been consummated in accordance with the Merger Agreement, the Separation Agreement and this Agreement and in the sequence set forth in Schedule 4.01(c)(i); provided that no amendment, modification or waiver of any term of the Merger Agreement or the Separation Agreement (other than any such amendment, modification or waiver that is not materially adverse to the interests of the Lenders) shall be made or granted, as the case may be, without the prior written consent of the Arrangers (not to be unreasonably withheld or delayed) (it being understood that any change greater than 10.0% (including any price decrease greater than 10.0%) of the original consideration payable pursuant to the Merger Agreement in effect as of the date hereof will be deemed to be materially adverse to the interests of the Lenders and will require the prior written consent of the Arrangers); andLender;
Appears in 1 contract
Conditions Precedent to the Closing Date. The Closing Date, the Lenders’ obligation of each Lender to make the initial Credit Extensions of Term A Loans (other than Term A-2 Loans), Term B Loans and Revolving Credit Loans, and of the L/C Issuer to issue Letters of Credit, shall, in each case, shall be subject to Section 11.25 and all of the following conditions:conditions precedent having been satisfied (or waived in accordance with Section 8.01):
(a) The Administrative Agent’s receipt Agent shall have received counterparts of the following, each of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and each in form and substance reasonably satisfactory to the Applicable Administrative Agent and its legal counsel:
(i) a Note executed by each applicable Borrower in favor of each Lender that has requested a Note;
(ii) each document necessary to satisfy the Collateral and Guaranty Requirements with respect to the Loan Parties and assets thereof in existence as of the Closing Date, including those documents listed on Schedule 4.02(a)(ii) under the caption “Closing Date Matters”, together with any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Applicable Administrative Agent to vest in the Applicable Administrative Agent valid and subsisting first priority perfected Liens (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge Agreement)) on the properties purported to be subject to the Collateral Documents as of the Closing Date, enforceable against all third parties in accordance with their terms; provided that to the extent that after the Effective Date, Holdings or SpinCo or any of their respective Subsidiaries create or acquire any assets as to which a Lien is required to be created or perfected pursuant to the Collateral and Guaranty Requirements, Holdings shall promptly notify the Applicable Administrative Agent in reasonable detail in writing thereof, and the Applicable Administrative Agent may supplement Schedule 4.02(a)(ii), under the caption “Closing Date Matters”, consistent with the Collateral and Guaranty Requirements, to include any agreements, documents or actions of the types specified in the first parenthetical of the last paragraph of this Section 4.02;
(iii) a certificate of a Responsible Officer of each Loan Party certifying as to the Organization Documents thereof together with copies of the Organization Documents of such Loan Party annexed thereto;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Applicable Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;Fee Letter signed on behalf of each party hereto and thereto.
(vb) The Administrative Agent shall have received certified copies of the resolutions of the Board of Directors of the Borrower approving, and authorizing the execution, delivery and performance of, this Agreement, the Notes and of all documents evidencing other necessary corporate actions and governmental approvals, if any, with respect to this Agreement and the Notes.
(c) The Administrative Agent shall have received a certificate of the Secretary or an opinion Assistant Secretary of the Borrower certifying the Borrower’s certificate of incorporation and by-laws and certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes.
(d) The Administrative Agent shall have received a certificate from (A) ▇▇▇▇▇▇ Price P.C., special the Secretary of State of New York counsel Jersey dated as of a date reasonably close to the Loans Partiesdate of such effectiveness as to the good standing of and charter documents filed by the Borrower.
(e) The Administrative Agent shall have received at least 3 Business Days prior to the Closing Date all documentation and other information regarding the Borrower required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act to the extent reasonably requested at least 10 Business Days prior to the Closing Date.
(Bf) ▇▇The Administrative Agent shall have received a favorable opinion of ▇▇▇▇ ▇▇▇▇▇▇ Gervais LLP▇▇, special OntarioSenior Vice President, British Columbia Corporate Secretary and Alberta counsel to the Loan Parties, and (C) local or other counsel in each Associate General Counsel of the jurisdictions listed on Schedule 4.02(a)(v) under the heading “Closing Date Opinions”, in each case as reasonably requested by the Applicable Administrative Agent, and, in the case of each of clauses (A) and (B), each in substantially the form previously provided to the Applicable Administrative Agent with such changes as are reasonably satisfactory to the Applicable Administrative Agent or as may arise from any changes in applicable law and, in the case of clause (C)Borrower, in form and substance reasonably satisfactory acceptable to the Administrative Agent and the Lenders (it being understood that the Lenders shall be deemed to be satisfied with any such opinion if it is provided to them at least three (3) days prior to the Closing Date and if the Required Lenders shall not have objected thereto prior to the Closing Date);
(vi) a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transaction, from the chief financial officer of Holdings;
(vii) a certificate attesting to the compliance with clauses (b), (c), (d), (e), (k), (m), (n), (o) and (q) of this Section 4.02 on the Closing Date from a Responsible Officer of Holdings;
(viii) a Committed Loan Notice pursuant to Section 2.02 other than with respect to the Term A-2 Loans;
(ix) an Officer’s Certificate (as defined in the Existing Senior Subordinated Notes Indenture) certifying that the Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness under this Agreement on the Closing Date does not violate the Existing Senior Subordinated Notes Indenture and attaching thereto a copy of any notice or certificate delivered to the trustee under the Existing Senor Subordinated Notes Indenture in connection with such Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness; provided that for purposes of such certification 100% of the Commitments shall be deemed to have been borrowed on the Closing Date; and
(x) a counterpart of each of (i) the U.S. Perfection Certificate (as defined in the U.S. Security Agreement), executed by Holdings and each other U.S. Loan Party party thereto, (ii) the Canadian Perfection Certificate (as defined in the applicable Canadian Security Agreement), executed by each Canadian Subsidiary of Holdings and SpinCoAgent.
(bg) All fees and expenses required to be paid and invoiced on or before the Closing Date shall have been, or concurrently with the closing of the Transaction shall be, paid in full in cash.
(c) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Refinancing shall have been consummated in full with all Liens in favor of the existing lenders being unconditionally released; the Applicable The Administrative Agent shall have received a “pay-off” letter certificate of an authorized officer of the Borrower certifying that (A) the representations and warranties contained in form Section 4.01 are true and substance reasonably satisfactory correct in all material respects (except to the Applicable Administrative Agent extent such representations and warranties are qualified with respect “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties are true and correct in all respects) on and as of the Closing Date, as though made on and as of the Closing Date, and (B) on and as of the Closing Date and before and after giving effect to all debt being refinanced in the Refinancing; borrowing of Loans and to the Applicable application of the proceeds therefrom, no event has occurred and is continuing, or would result from such borrowing or from the application of the proceeds therefrom, which constitutes a Default or an Event of Default.
(h) The Administrative Agent shall have received from any Person holding any Lien securing any such debt, such UCC and/or PPSA termination statements, mortgage releases, releases a Notice of assignments of leases and rents, releases of security interests in intellectual property and other instruments, in each case in proper form for recording, as the Applicable Administrative Agent shall have reasonably requested to release and terminate of record the Liens securing such debt.
(d) (i) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Contribution, the Merger and the Transaction shall have been consummated Borrowing in accordance with the Merger Agreement, the Separation Agreement and this Agreement and in the sequence set forth in Schedule 4.01(c)(iSection 2.02(a); provided that no amendment, modification or waiver of any term of the Merger Agreement or the Separation Agreement (other than any such amendment, modification or waiver that is not materially adverse to the interests of the Lenders) shall be made or granted, as the case may be, without the prior written consent of the Arrangers (not to be unreasonably withheld or delayed) (it being understood that any change greater than 10.0% (including any price decrease greater than 10.0%) of the original consideration payable pursuant to the Merger Agreement in effect as of the date hereof will be deemed to be materially adverse to the interests of the Lenders and will require the prior written consent of the Arrangers); and.
Appears in 1 contract
Sources: 364 Day Term Loan Agreement (Becton Dickinson & Co)
Conditions Precedent to the Closing Date. The occurrence of the Closing Date, Date and the obligation effectiveness of this Agreement are subject to the prior satisfaction of each Lender to make the initial Credit Extensions of Term A Loans (other than Term A-2 Loans), Term B Loans and Revolving Credit Loans, and of the L/C Issuer to issue Letters of Credit, shall, following conditions (unless waived in each case, be subject to Section 11.25 writing by Lender in its sole and the following conditions:absolute discretion):
(a) The Administrative Agent’s receipt Each representation and warranty set forth in Section 4.1 is true and correct in all respects on the Closing Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all respects as of such earlier date).
(b) No Default or Event of Default shall have occurred and be continuing.
(c) Delivery to Lender of a copy of one or more resolutions or other authorizations of each Borrower, certified by a Responsible Officer of such Borrower as being in full force and effect on the Closing Date, authorizing the execution, delivery and performance of this Agreement and the other Operative Documents (to the extent such documents are to be executed as of the followingClosing Date) and any instruments or agreements required hereunder or thereunder to which Borrowers are a party.
(d) Delivery to Lender of a certificate, in the form of Exhibit D-2, or otherwise in form and substance satisfactory to Lender from each Borrower, signed by an authorized Responsible Officer of such Borrower and dated as of the Closing Date, as to, among other items, the incumbency of the natural persons authorized to execute and deliver this Agreement and the other Financing 4297870.2 Documents and any instruments or agreements required hereunder or thereunder to which such Borrower is a party.
(e) Delivery to Lender of a copy of the certificate of formation of each Borrower, certified by the Secretary of State of the State of Delaware, a copy of the operating agreement of such Borrower and good standing certificate issued by the Secretary of State of Delaware, certifying that the Borrower is in good standing.
(f) No material action, suit, proceeding or investigation shall have been instituted or threatened against either Borrower.
(g) All limited liability company proceedings and documentation of each Borrower relating to the transactions contemplated by this Agreement shall be satisfactory in form and substance to Lender, and Lender shall have received all information and copies of all documents, including records of limited liability company proceedings and copies of any approval by any Governmental Authority required in connection with any transaction herein contemplated, such documents where appropriate to be certified by proper limited liability company officers or Governmental Authorities.
(h) Delivery to Lender of executed originals of each Financing Document contemplated or required to be effective as of the Closing Date, which shall be satisfactory in form and substance to Lender, and shall have been duly authorized, executed and delivered by the parties thereto (to the extent such documents are required to be executed as of the Closing Date), including, without limitation, amended and restated Mortgages on all Sites upon which Existing Projects are located. All Liens contemplated by the Collateral Documents to be created and perfected in favor of Lender as of the Closing Date shall have been perfected, recorded and filed in the appropriate jurisdictions. Closing Date.
(i) Lender shall have received Borrowers’ Closing Certificate, dated as of the
(j) Subject to the provisions of Section 5.21 hereof, delivery to Lender of a legal opinion (each of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer dated as of the signing Loan Party Closing Date) of:
(i) ▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel to Borrowers, in a form acceptable to Lender, and addressing such matters as Lender may request; and
(ii) Local counsel for Borrowers, in a form acceptable to Lender, and addressing such matters as Lender may request in each jurisdiction in which an Existing Project is located.
(k) Lender shall have received a UCC search report of a recent date before the Closing Date for each of the jurisdictions in which the UCC-1 financing statements are intended to be filed in respect of the Collateral being secured as of the Closing Date, showing that upon due filing (assuming such filing occurred on the date of such respective reports), the security interests created under the relevant Collateral Documents will have a first-priority interest over all other financing 4297870.2 statements in respect of such Collateral, subject to Permitted Liens that, pursuant to the applicable Legal Requirements, are entitled to a higher priority than the Lien of Lender.
(l) All amounts (including, but not limited to, the fees pursuant to Section 2.10) required to be paid to or deposited with Lender hereunder and its counsel and consultants, and all taxes, fees and other costs payable in connection with the execution, delivery and filing of the documents and instruments required to be filed as a condition precedent pursuant to this Section 3.1, shall have been paid in full (or in connection with such taxes, fees (other than fees payable to Lender) and costs, Borrowers shall have made other arrangements acceptable to Lender in its sole discretion).
(m) Lender shall have received: (i) Borrowers’ unaudited balance sheet at January 31, 2013, and the related statements of income and cash flows of Borrowers for the four fiscal quarters then ended; (ii) Borrowers’ most recent pro forma financial information in form and substance acceptable to Lender and (iii) such other information regarding Borrowers’ corporate structure, capital structure, other indebtedness and material accounts as Lender may request, in each case in form and substance satisfactory to Lender.
(n) Lender shall have received appraisals of the Existing Projects, in each case in form and substance satisfactory and certified to Lender and prepared by an appraiser or appraisers acceptable to Lender, demonstrating a fair market value for the real estate and other tangible assets constituting the Existing Projects in an aggregate amount of not less than One Hundred Sixteen Million Six Hundred Sixty Six Thousand Six Hundred Sixty Seven Dollars ($116,666,667).
(o) Lender shall have received all such documentation and information requested by Lender that is necessary (including the name and addresses of Borrower, taxpayer identification forms, name of officers/board members, documents and copies of government-issued identification of Borrowers or owners thereof) for Lender to identify Borrowers in accordance with the requirements of the Patriot Act (including the “know your customer” and similar regulations thereunder).
(p) No Material Adverse Change with respect to Borrowers has occurred.
(q) Concurrently with the making of the Term Loan, (i) Lodging Properties shall have purchased pursuant to the Unit Purchase Agreement (no material provision of which shall have been amended or otherwise modified or waived without the prior written consent of Lender) and shall have become the owner, free and clear of all Liens other than Permitted Liens, of all of the issued and outstanding membership units of Lodging Enterprises, (ii) each of Borrower and the Sellers shall have fully performed all of the obligations to be performed by it under the Acquisition Documents (as so amended, modified or waived), (iii) the Lodging Enterprises Transaction, including all of the terms and conditions thereof, shall have been duly authorized by the Board of Directors and (if required by applicable law) the shareholders, members or partners of the parties to the Acquisition Documents and all Acquisition Documents shall have been duly executed and delivered by the parties thereto and shall be in full force and effect in all material respects, (iv) the representations and warranties set forth in the Acquisition Documents shall be true and correct in all material respects as if made on and as of the Closing Date, (v) each of the conditions precedent to the obligations of each of the parties to the Acquisition Documents (as so amended, modified or waived by Lodging Properties as permitted in subsection (q)(i)) to consummate the Lodging Enterprises Transaction as set forth in the Acquisition 4297870.2 Documents shall have been satisfied or waived with the consent of Lender, and the Lodging Enterprises Transaction shall have been consummated in accordance with all applicable law and the Acquisition Documents, (vi) Lender shall have received evidence reasonably satisfactory to it as to the foregoing, as to the receipt by all parties to the Acquisition Documents of all necessary regulatory, creditor, lessor, and other third-party approvals and as to material compliance with all laws applicable to any of such parties, (vii) the Lodging Enterprises Transaction shall be consummated substantially in accordance with the Acquisition Documents and (viii) indefeasible repayment in full of the Subordinated Debt.
(r) Concurrently with the making of the Term Loan, the Existing Projects shall be transferred from Lodging Enterprises to Lodging Properties and Lodging Properties shall lease the Existing Projects to Lodging Enterprises, all pursuant to instruments of transfer and leases in form and substance reasonably satisfactory to Lender; provided, however, the Applicable Administrative Agent and its legal counsel:
(i) a Note executed by each applicable Borrower in favor of each Lender that has requested a Note;
(ii) each document necessary to satisfy the Collateral and Guaranty Requirements with respect to the Loan Parties and assets thereof in existence as of the Closing Date, including those documents listed on Schedule 4.02(a)(ii) under the caption “Closing Date Matters”, together with any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Applicable Administrative Agent to vest in the Applicable Administrative Agent valid and subsisting first priority perfected Liens (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge Agreement)) on the properties purported to be subject to the Collateral Documents as of the Closing Date, enforceable against all third parties in accordance with their terms; provided that to the extent that after the Effective Date, Holdings or SpinCo or any of their respective Subsidiaries create or acquire any assets as to which a Lien is required to be created or perfected pursuant to the Collateral and Guaranty Requirements, Holdings shall promptly notify the Applicable Administrative Agent in reasonable detail in writing thereof, and the Applicable Administrative Agent may supplement Schedule 4.02(a)(ii), under the caption “Closing Date Matters”, consistent with the Collateral and Guaranty Requirements, to include any agreements, documents or actions of the types specified in the first parenthetical of the last paragraph of this Section 4.02;
(iii) a certificate of a Responsible Officer of each Loan Party certifying as to the Organization Documents thereof together with copies of the Organization Documents of such Loan Party annexed thereto;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Applicable Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(v) an opinion from (A) ▇▇▇Existing Project located at ▇▇▇ Price P.C., special New York counsel to the Loans Parties, (B) ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ Gervais LLP▇▇▇▇, special Ontario, British Columbia and Alberta counsel ▇▇▇▇▇▇▇▇ will not be transferred to the Loan PartiesLodging Properties, and will remain owned by Lodging Enterprises.
(Cs) local Borrowers shall have received an equity contribution in an amount of no less than Sixty Five Million Dollars ($65,000,000) in connection with the Lodging Enterprises Transaction.
(t) Lender shall have received a certified copy of an employment contract by and between TR Lodging Enterprises Inc. and [Redacted – name of individual.].
(u) Lender shall have entered into participation agreements or similar undertakings satisfactory to Lender with other counsel in each of the jurisdictions listed on Schedule 4.02(a)(v) under the heading “Closing Date Opinions”, in each case as reasonably requested financial institutions selected by the Applicable Administrative Agent, and, Lender pursuant to which such institutions shall commit to purchase participations in the case Loans in an aggregate principal amount of not less than Fifty Five Million Dollars ($55,000,000) on the Closing Date.
(v) Certificates of each Borrower’s insurance evidencing the insurance required by Section 5.14 in form and substance acceptable to Lender.
(w) A lender’s policy of clauses title insurance insuring Lenders Lien on each Existing Project issued by a national title company reasonably acceptable to Lender (Athe “Title Company”) in an amount not less than the Project Appraised Value of such Existing Project (or such other amount approved by Lender in its sole discretion) in form and (B)substance acceptable to, each in substantially the form previously provided to the Applicable Administrative Agent with and containing such changes as are reasonably satisfactory to the Applicable Administrative Agent or endorsements as may arise from any changes be required by, Lender in applicable law andits sole discretion, provided, that, such title policies may be limited by a “tie-in” or “aggregation” endorsement in the case amount of clause $70,000,000.
(C)x) Intentionally omitted.
(y) Such other documents as Lender shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders (it being understood Lender, if Lender has a reasonable concern that the Lenders shall be deemed to be satisfied with any such opinion if it is provided to them at least three (3) days prior to the Closing Date and if the Required Lenders shall not have objected thereto prior to the Closing Date);
(vi) a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transaction, from the chief financial officer of Holdings;
(vii) a certificate attesting to the compliance with clauses (b), (c), (d), (e), (k), (m), (n), (o) and (q) of condition precedent in this Section 4.02 on the Closing Date from 3.1 has not been satisfied, including a Responsible Officer of Holdings;
(viii) a Committed Loan Notice pursuant to Section 2.02 other than with respect to the Term A-2 Loans;
(ix) an Officer’s Certificate (as defined in the Existing Senior Subordinated Notes Indenture) certifying that the Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness under this Agreement on the Closing Date does not violate the Existing Senior Subordinated Notes Indenture and attaching thereto a copy breach of any notice covenant or certificate delivered to the trustee under the Existing Senor Subordinated Notes Indenture representation and warranty in connection with such Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness; provided that for purposes of such certification 100% of the Commitments shall be deemed to have been borrowed on the Closing Date; and
(x) a counterpart of each of (i) the U.S. Perfection Certificate (as defined in the U.S. Security this Agreement), executed by Holdings and each other U.S. Loan Party party thereto, (ii) the Canadian Perfection Certificate (as defined in the applicable Canadian Security Agreement), executed by each Canadian Subsidiary of Holdings and SpinCo.
(b) All fees and expenses required to be paid and invoiced on or before the Closing Date shall have been, or concurrently with the closing of the Transaction shall be, paid in full in cash.
(c) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Refinancing shall have been consummated in full with all Liens in favor of the existing lenders being unconditionally released; the Applicable Administrative Agent shall have received a “pay-off” letter in form and substance reasonably satisfactory to the Applicable Administrative Agent with respect to all debt being refinanced in the Refinancing; and the Applicable Administrative Agent shall have received from any Person holding any Lien securing any such debt, such UCC and/or PPSA termination statements, mortgage releases, releases of assignments of leases and rents, releases of security interests in intellectual property and other instruments, in each case in proper form for recording, as the Applicable Administrative Agent shall have reasonably requested to release and terminate of record the Liens securing such debt.
(d) (i) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Contribution, the Merger and the Transaction shall have been consummated in accordance with the Merger Agreement, the Separation Agreement and this Agreement and in the sequence set forth in Schedule 4.01(c)(i); provided that no amendment, modification or waiver of any term of the Merger Agreement or the Separation Agreement (other than any such amendment, modification or waiver that is not materially adverse to the interests of the Lenders) shall be made or granted, as the case may be, without the prior written consent of the Arrangers (not to be unreasonably withheld or delayed) (it being understood that any change greater than 10.0% (including any price decrease greater than 10.0%) of the original consideration payable pursuant to the Merger Agreement in effect as of the date hereof will be deemed to be materially adverse to the interests of the Lenders and will require the prior written consent of the Arrangers); and
Appears in 1 contract
Sources: Credit Agreement
Conditions Precedent to the Closing Date. The Initial Lenders and the Borrower shall issue a joint release instruction to the Escrow Agent upon the satisfaction of (or waiver by the Initial Lenders in writing of) the following the conditions precedent, in form and substance satisfactory to Agent and Initial Lenders (the “Closing Date, the obligation of each Lender to make the initial Credit Extensions of Term A Loans (other than Term A-2 Loans), Term B Loans and Revolving Credit Loans, and of the L/C Issuer to issue Letters of Credit, shall, in each case, be subject to Section 11.25 and the following conditions:”):
(a) The Administrative Agent’s receipt of Loan Documents (including, but not limited to, this Agreement and the following, each of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originalsAgent Fee Letter) unless otherwise specified, each properly duly executed by a Responsible Officer of Borrower and the signing Guarantors required to sign such Loan Party and each in form and substance reasonably satisfactory to the Applicable Administrative Agent and its legal counsel:
(i) a Note executed by each applicable Borrower in favor of each Lender that has requested a NoteDocument;
(iib) each document necessary The Current Financial Statements of Parent;
(c) Evidence of the insurance coverage required by Section 6.8 of this Agreement;
(d) To the extent requested by any Initial Lender, a Note in the principal amount of the Term Loan in respect of such Initial Lender’s Pro Rata Percentage shall be provided by Borrower to satisfy the Collateral and Guaranty Requirements with respect such requesting Initial Lender;
(e) Customary legal opinions of (x) Stroock & Stroock & L▇▇▇▇ LLP, in its capacity as special counsel to the Loan Parties and assets thereof (y) local counsel opinions covering Loan Parties and jurisdictions as reasonably agreed by the Borrower and the Initial Lenders in existence each case, dated as of the Closing Date, including those documents listed on Schedule 4.02(a)(ii) under the caption “Closing Date Matters”, together with any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Applicable Administrative Agent to vest in the Applicable Administrative Agent valid and subsisting first priority perfected Liens (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge Agreement)) on the properties purported to be subject addressed to the Collateral Documents as of the Closing Date, enforceable against all third parties in accordance with their terms; provided that to the extent that after the Effective Date, Holdings or SpinCo or any of their respective Subsidiaries create or acquire any assets as to which a Lien is required to be created or perfected pursuant to the Collateral and Guaranty Requirements, Holdings shall promptly notify the Applicable Administrative Agent in reasonable detail in writing thereof, and the Applicable Administrative Agent may supplement Schedule 4.02(a)(ii), under the caption “Closing Date Matters”, consistent with the Collateral and Guaranty Requirements, to include any agreements, documents or actions of the types specified in the first parenthetical of the last paragraph of this Section 4.02Initial Lenders;
(iiif) a Delivery of an executed Notice of Borrowing, direction letter and Funds Flow Memorandum;
(g) The Closing Date shall not occur before April 1, 2022;
(h) A duly executed officer’s certificate of a Responsible Officer of each Loan Party certifying as to containing the Organization Documents thereof together with copies of following documents: (i) the Organization Documents of such Loan Party annexed thereto;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party (which, to the extent filed with a Governmental Authority, shall be certified as of a recent date by such Governmental Authority), (ii) resolutions authorizing the Applicable Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(v) an opinion from (A) ▇▇▇▇▇▇ Price P.C., special New York counsel to the Loans Parties, (B) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Gervais LLP, special Ontario, British Columbia and Alberta counsel to the Loan Parties, and (C) local or other counsel in each of the jurisdictions listed on Schedule 4.02(a)(v) under the heading “Closing Date Opinions”, in each case as reasonably requested by the Applicable Administrative Agent, and, in the case of each Parent, the Warrants, the Warrant Agreement and the Registration Rights Agreement (including authorization of clauses the reservation and issuance of Parent’s common stock upon exercise of the Warrants), (iii) a good standing certificate from (A) each Loan Party’s state of formation and (B)) from any state where such party is, each in substantially the form previously provided or is required to be, qualified to do business to the Applicable Administrative Agent extent failure to so qualified could reasonably be expected to have a Material Adverse Effect and (iv) incumbency and representative signatures;
(i) All necessary consents of stockholders or members and other third parties with such changes as are reasonably satisfactory respect to the Applicable Administrative Agent or as may arise from any changes in applicable law execution, delivery and performance of the Loan Documents by the Loan Parties and, in the case of clause Parent, the Warrants, the Warrant Agreement and the Registration Rights Agreement (C), in form and substance reasonably satisfactory including consent to the Administrative issuance of Parent’s common stock upon exercise of the Warrants);
(j) [reserved];
(k) The execution and delivery by the Intermediation Facility Agent and the Loan Parties of an Intercreditor Agreement;
(l) The execution and delivery by Parent of the Warrant Agreement and the Registration Rights Agreement and the issuance by Parent of the Warrants to the Initial Lenders or their Affiliates or Approved Funds;
(it being understood m) A Solvency Certificate from the chief financial officer, chief executive officer, president or similar senior officer of Parent (after giving effect to the transactions contemplated by this Agreement, including the issuance by Parent of the Warrants) certifying that the Loan Parties, individually and collectively, are not Insolvent;
(n) The Mobile Refinery Acquisition shall have been consummated substantially simultaneously with the initial borrowings under the Facility in accordance with the Mobile Refinery Acquisition Agreement;
(o) Since the date of the Mobile Refinery Acquisition Agreement, there shall not have occurred a Material Adverse Effect (as defined in the Mobile Refinery Acquisition Agreement);
(p) Such documents, instruments and agreements, including certificates evidencing Collateral consisting of Equity Interests, Uniform Commercial Code financing statements or amendments to Uniform Commercial Code financing statements, as the Initial Lenders shall be deemed reasonably request to be satisfied evidence the perfection and priority of the security interests granted to Agent pursuant to Section 4;
(q) Subject to Section 6.19, the Agent shall have received, subject to the Intercreditor Agreement, all documents, agreements and instruments required to create and perfect the Agent’s security interest in the Collateral. The Loan Parties shall have filed or shall have provided all UCC-1 financing statements and the Intellectual Property Security Agreement in form for filing by the Required Lenders or their counsel and shall have delivered all certificated pledged equity and documented pledged debt (if any) with any such opinion if it is appropriate transfer powers and/or allonges by the Closing Date;
(r) Borrower shall have paid all Lender Expenses and all fees due pursuant to the Agent Fee Letter or the Commitment Letter, as applicable;
(s) The Borrower and each of the Guarantors shall have provided to them at least three (3) no less than 3 business days prior to the Closing Date the documentation and if other information to the Required Lenders shall not have objected thereto that are reasonably requested by the Lenders no later than 10 days prior to the Closing Date)Date under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT ACT, the USA FREEDOM Act, IRS Form W-9 (if applicable) and other applicable tax forms;
(vit) a certificate attesting to Such other documents, and completion of such other matters, as Agent or Initial Lenders may reasonably deem necessary or appropriate;
(u) Confirmation that (i) the Solvency representations and warranties contained in Section 5 shall be true and correct on and as of Holdings and its Subsidiaries (taken as a whole) on the Closing Date (except for such representations and warranties made as of a specific date, in which case such representations and warranties shall be true and correct as of such specific date), after giving effect in all cases to any standard(s) of materiality contained in Article 5 as to such representations and warranties, and (ii) no Default or Event of Default shall have occurred and be continuing, or would exist after giving effect to the Transaction, from funding of the chief financial officer Term Loan. The making of Holdings;the Term Loan shall be deemed to be a representation and warranty by Borrower on the date of the Term Loan as to the accuracy of the facts referred to in this Section 3.1; and
(viiv) Concurrently with the consummation of the Mobile Refinery Acquisition, the Loan Parties (and/or any Intermediation Facility Agent) shall execute and deliver or confirm effectiveness of the material supply and offtake agreements with Macquarie Energy North America Trading Inc., Shell Trading (US) Company, Equilon Enterprises LLC d/b/a certificate attesting Shell Oil Products US, Shell Chemical LP, Synergy Supply & Trading LLC, and Idemitsu Apollo Renewable Corp. on substantially similar terms as the agreements provided to counsel to the Lenders on February 16, 2022, subject to (x) any amendments, modifications or adjustments to the terms thereof (other than economic terms) required by any Intermediation Facility Agent, the Loan Parties or the applicable counterparty to the intermediation arrangements to the extent not materially adverse to the Lenders and (y) any amendments, modifications or adjustments to the economic terms thereof required by any Intermediation Facility Agent, the Loan Parties or the applicable counterparty to the intermediation arrangements to the extent not adverse to the Lenders. For purposes of determining compliance with clauses (b), (c), (d), (e), (k), (m), (n), (o) and (q) of the conditions specified in this Section 4.02 on the Closing Date from a Responsible Officer of Holdings;
(viii) a Committed Loan Notice pursuant to Section 2.02 other than with respect to the Term A-2 Loans;
(ix) an Officer’s Certificate (as defined in the Existing Senior Subordinated Notes Indenture) certifying 3.1, each Initial Lender that the Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness under has signed this Agreement on the Closing Date does not violate the Existing Senior Subordinated Notes Indenture and attaching thereto a copy of any notice or certificate delivered to the trustee under the Existing Senor Subordinated Notes Indenture in connection with such Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness; provided that for purposes of such certification 100% of the Commitments shall be deemed to have been borrowed on the Closing Date; and
(x) a counterpart of each of (i) the U.S. Perfection Certificate (as defined in the U.S. Security Agreement)consented to, executed by Holdings and each other U.S. Loan Party party thereto, (ii) the Canadian Perfection Certificate (as defined in the applicable Canadian Security Agreement), executed by each Canadian Subsidiary of Holdings and SpinCo.
(b) All fees and expenses required approved or accepted or to be paid and invoiced on satisfied with, each document or before the Closing Date shall have been, or concurrently with the closing of the Transaction shall be, paid in full in cash.
(c) Prior other matter required thereunder to be consented to or substantially concurrently with approved by or acceptable or satisfactory to a Lender unless the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Refinancing shall have been consummated in full with all Liens in favor of the existing lenders being unconditionally released; the Applicable Administrative Agent shall have received a “pay-off” letter in form and substance reasonably satisfactory notice from such Lender prior to the Applicable Administrative Agent with respect to all debt being refinanced in the Refinancing; and the Applicable Administrative Agent shall have received from any Person holding any Lien securing any such debt, such UCC and/or PPSA termination statements, mortgage releases, releases of assignments of leases and rents, releases of security interests in intellectual property and other instruments, in each case in proper form for recording, as the Applicable Administrative Agent shall have reasonably requested to release and terminate of record the Liens securing such debtproposed Closing Date specifying its objection thereto.
(d) (i) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Contribution, the Merger and the Transaction shall have been consummated in accordance with the Merger Agreement, the Separation Agreement and this Agreement and in the sequence set forth in Schedule 4.01(c)(i); provided that no amendment, modification or waiver of any term of the Merger Agreement or the Separation Agreement (other than any such amendment, modification or waiver that is not materially adverse to the interests of the Lenders) shall be made or granted, as the case may be, without the prior written consent of the Arrangers (not to be unreasonably withheld or delayed) (it being understood that any change greater than 10.0% (including any price decrease greater than 10.0%) of the original consideration payable pursuant to the Merger Agreement in effect as of the date hereof will be deemed to be materially adverse to the interests of the Lenders and will require the prior written consent of the Arrangers); and
Appears in 1 contract
Conditions Precedent to the Closing Date. The Closing Date, the Lenders’ obligation of each Lender to make the initial Credit Extensions of Term A Loans (other than Term A-2 Loans), Term B Loans and Revolving Credit Loans, and of on the L/C Issuer to issue Letters of Credit, shall, in each case, Closing Date shall be subject to Section 11.25 and all of the following conditions:conditions precedent having been satisfied (or waived in accordance with Section 8.01):
(a) The Administrative Agent’s receipt Agent shall have received counterparts of the following, each of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and each in form and substance reasonably satisfactory to the Applicable Administrative Agent and its legal counsel:
(i) a Note executed by each applicable Borrower in favor of each Lender that has requested a Note;
(ii) each document necessary to satisfy the Collateral and Guaranty Requirements with respect to the Loan Parties and assets thereof in existence as of the Closing Date, including those documents listed on Schedule 4.02(a)(ii) under the caption “Closing Date Matters”, together with any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Applicable Administrative Agent to vest in the Applicable Administrative Agent valid and subsisting first priority perfected Liens (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge Agreement)) on the properties purported to be subject to the Collateral Documents as of the Closing Date, enforceable against all third parties in accordance with their terms; provided that to the extent that after the Effective Date, Holdings or SpinCo or any of their respective Subsidiaries create or acquire any assets as to which a Lien is required to be created or perfected pursuant to the Collateral and Guaranty Requirements, Holdings shall promptly notify the Applicable Administrative Agent in reasonable detail in writing thereof, and the Applicable Administrative Agent may supplement Schedule 4.02(a)(ii), under the caption “Closing Date Matters”, consistent with the Collateral and Guaranty Requirements, to include any agreements, documents or actions of the types specified in the first parenthetical of the last paragraph of this Section 4.02;
(iii) a certificate of a Responsible Officer of each Loan Party certifying as to the Organization Documents thereof together with copies of the Organization Documents of such Loan Party annexed thereto;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Applicable Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;Fee Letter signed on behalf of each party hereto and thereto.
(vb) The Administrative Agent shall have received certified copies of the resolutions of the Board of Directors of the Borrower approving, and authorizing the execution, delivery and performance of, this Agreement, the Notes and of all documents evidencing other necessary corporate actions and governmental approvals, if any, with respect to this Agreement and the Notes.
(c) The Administrative Agent shall have received a certificate of the Secretary or an opinion Assistant Secretary of the Borrower certifying the Borrower’s certificate of incorporation and by-laws and certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the Notes.
(d) The Administrative Agent shall have received a certificate from (A) ▇▇▇▇▇▇ Price P.C., special the Secretary of State of New York counsel Jersey dated as of a date reasonably close to the Loans Partiesdate of such effectiveness as to the good standing of and charter documents filed by the Borrower.
(e) The Administrative Agent shall have received at least 3 Business Days prior to the Closing Date all documentation and other information regarding the Borrower required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act to the extent reasonably requested at least 10 Business Days prior to the Closing Date.
(Bf) ▇▇The Administrative Agent shall have received a favorable opinion of ▇▇▇▇ ▇▇▇▇▇▇ Gervais LLP▇▇, special OntarioSenior Vice President, British Columbia Corporate Secretary and Alberta counsel to the Loan Parties, and (C) local or other counsel in each Associate General Counsel of the jurisdictions listed on Schedule 4.02(a)(v) under the heading “Closing Date Opinions”, in each case as reasonably requested by the Applicable Administrative Agent, and, in the case of each of clauses (A) and (B), each in substantially the form previously provided to the Applicable Administrative Agent with such changes as are reasonably satisfactory to the Applicable Administrative Agent or as may arise from any changes in applicable law and, in the case of clause (C)Borrower, in form and substance reasonably satisfactory acceptable to the Administrative Agent and the Lenders (it being understood that the Lenders shall be deemed to be satisfied with any such opinion if it is provided to them at least three (3) days prior to the Closing Date and if the Required Lenders shall not have objected thereto prior to the Closing Date);
(vi) a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transaction, from the chief financial officer of Holdings;
(vii) a certificate attesting to the compliance with clauses (b), (c), (d), (e), (k), (m), (n), (o) and (q) of this Section 4.02 on the Closing Date from a Responsible Officer of Holdings;
(viii) a Committed Loan Notice pursuant to Section 2.02 other than with respect to the Term A-2 Loans;
(ix) an Officer’s Certificate (as defined in the Existing Senior Subordinated Notes Indenture) certifying that the Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness under this Agreement on the Closing Date does not violate the Existing Senior Subordinated Notes Indenture and attaching thereto a copy of any notice or certificate delivered to the trustee under the Existing Senor Subordinated Notes Indenture in connection with such Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness; provided that for purposes of such certification 100% of the Commitments shall be deemed to have been borrowed on the Closing Date; and
(x) a counterpart of each of (i) the U.S. Perfection Certificate (as defined in the U.S. Security Agreement), executed by Holdings and each other U.S. Loan Party party thereto, (ii) the Canadian Perfection Certificate (as defined in the applicable Canadian Security Agreement), executed by each Canadian Subsidiary of Holdings and SpinCoAgent.
(bg) All fees and expenses required to be paid and invoiced on or before the Closing Date shall have been, or concurrently with the closing of the Transaction shall be, paid in full in cash.
(c) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Refinancing shall have been consummated in full with all Liens in favor of the existing lenders being unconditionally released; the Applicable The Administrative Agent shall have received a “pay-off” letter certificate of an authorized officer of the Borrower certifying that (A) the representations and warranties contained in form Section 4.01 are true and substance reasonably satisfactory correct in all material respects (except to the Applicable Administrative Agent extent such representations and warranties are qualified with respect “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties are true and correct in all respects) on and as of the Closing Date, as though made on and as of the Closing Date, and (B) on and as of the Closing Date and before and after giving effect to all debt being refinanced in the Refinancing; borrowing of Loans and to the Applicable application of the proceeds therefrom, no event has occurred and is continuing, or would result from such borrowing or from the application of the proceeds therefrom, which constitutes a Default or an Event of Default.
(h) The Administrative Agent shall have received from any Person holding any Lien securing any such debt, such UCC and/or PPSA termination statements, mortgage releases, releases a Notice of assignments of leases and rents, releases of security interests in intellectual property and other instruments, in each case in proper form for recording, as the Applicable Administrative Agent shall have reasonably requested to release and terminate of record the Liens securing such debt.
(d) (i) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Contribution, the Merger and the Transaction shall have been consummated Borrowing in accordance with the Merger Agreement, the Separation Agreement and this Agreement and in the sequence set forth in Schedule 4.01(c)(iSection 2.02(a); provided that no amendment, modification or waiver of any term of the Merger Agreement or the Separation Agreement (other than any such amendment, modification or waiver that is not materially adverse to the interests of the Lenders) shall be made or granted, as the case may be, without the prior written consent of the Arrangers (not to be unreasonably withheld or delayed) (it being understood that any change greater than 10.0% (including any price decrease greater than 10.0%) of the original consideration payable pursuant to the Merger Agreement in effect as of the date hereof will be deemed to be materially adverse to the interests of the Lenders and will require the prior written consent of the Arrangers); and.
Appears in 1 contract
Sources: 364 Day Term Loan Agreement (Becton Dickinson & Co)
Conditions Precedent to the Closing Date. The Closing Date, This Agreement shall not become effective until the obligation of date on which each Lender to make the initial Credit Extensions of Term A Loans (other than Term A-2 Loans), Term B Loans and Revolving Credit Loans, and of the L/C Issuer to issue Letters of Credit, shall, following conditions is satisfied (or waived in each case, be subject to accordance with Section 11.25 and the following conditions:11.02).
(a) The Administrative Agent’s receipt of the following, Agent (or its counsel) shall have received from each of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party and each in form and substance reasonably satisfactory to the Applicable Administrative Agent and its legal counsel:
party thereto either (i) a Note executed by each applicable Borrower in favor counterpart of each Lender that has requested a Note;
this Agreement signed on behalf of such party or (ii) each document necessary to satisfy the Collateral and Guaranty Requirements with respect to the Loan Parties and assets thereof in existence as of the Closing Date, including those documents listed on Schedule 4.02(a)(ii) under the caption “Closing Date Matters”, together with any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Applicable Administrative Agent to vest in the Applicable Administrative Agent valid and subsisting first priority perfected Liens (subject as to priority to Permitted Liens (other than with respect to Equity Interests pledged pursuant to any Pledge Agreement)) on the properties purported to be subject to the Collateral Documents as of the Closing Date, enforceable against all third parties in accordance with their terms; provided that to the extent that after the Effective Date, Holdings or SpinCo or any of their respective Subsidiaries create or acquire any assets as to which a Lien is required to be created or perfected pursuant to the Collateral and Guaranty Requirements, Holdings shall promptly notify the Applicable Administrative Agent in reasonable detail in writing thereof, and the Applicable Administrative Agent may supplement Schedule 4.02(a)(ii), under the caption “Closing Date Matters”, consistent with the Collateral and Guaranty Requirements, to include any agreements, documents or actions of the types specified in the first parenthetical of the last paragraph of this Section 4.02;
(iii) a certificate of a Responsible Officer of each Loan Party certifying as to the Organization Documents thereof together with copies of the Organization Documents of such Loan Party annexed thereto;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Applicable Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(v) an opinion from (A) ▇▇▇▇▇▇ Price P.C., special New York counsel to the Loans Parties, (B) ▇▇▇▇▇▇ ▇▇▇▇▇▇ Gervais LLP, special Ontario, British Columbia and Alberta counsel to the Loan Parties, and (C) local or other counsel in each of the jurisdictions listed on Schedule 4.02(a)(v) under the heading “Closing Date Opinions”, in each case as reasonably requested by the Applicable Administrative Agent, and, in the case of each of clauses (A) and (B), each in substantially the form previously provided to the Applicable Administrative Agent with such changes as are reasonably satisfactory to the Applicable Administrative Agent or as may arise from any changes in applicable law and, in the case of clause (C), in form and substance reasonably written evidence satisfactory to the Administrative Agent and the Lenders (it being understood that the Lenders shall be deemed to be satisfied with any such opinion if it is provided to them at least three (3) days prior to the Closing Date and if the Required Lenders shall not have objected thereto prior to the Closing Date);
(vi) which may include facsimile or electronic transmission of a certificate attesting to the Solvency of Holdings and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transaction, from the chief financial officer of Holdings;
(vii) a certificate attesting to the compliance with clauses (b), (c), (d), (e), (k), (m), (n), (o) and (q) signed signature page of this Section 4.02 on the Closing Date from a Responsible Officer of Holdings;
(viiiAgreement) a Committed Loan Notice pursuant to Section 2.02 other than with respect to the Term A-2 Loans;
(ix) an Officer’s Certificate (as defined in the Existing Senior Subordinated Notes Indenture) certifying that the Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness under this Agreement on the Closing Date does not violate the Existing Senior Subordinated Notes Indenture and attaching thereto a copy of any notice or certificate delivered to the trustee under the Existing Senor Subordinated Notes Indenture in connection with such Incurrence (as defined in the Existing Senior Subordinated Notes Indenture) of Indebtedness; provided that for purposes of such certification 100% of the Commitments shall be deemed to have been borrowed on the Closing Date; and
(x) party has signed a counterpart of each of (i) the U.S. Perfection Certificate (as defined in the U.S. Security this Agreement), executed by Holdings and each other U.S. Loan Party party thereto, (ii) the Canadian Perfection Certificate (as defined in the applicable Canadian Security Agreement), executed by each Canadian Subsidiary of Holdings and SpinCo.
(b) All The Lenders, the Administrative Agent, the Arrangers and each other Person entitled to the payment of fees or the reimbursement or payment of expenses, pursuant hereto or to those certain fee letters dated November 7, 2014, executed and expenses delivered with respect to the credit facility provided for herein, shall have received all fees required to be paid by the Closing Date (including, without limitation, all fees owing on the Closing Date under Section 2.12(d) hereof), and invoiced all expenses for which invoices have been presented on or before the Closing Date shall have been, or concurrently with the closing of the Transaction shall be, paid in full in cashDate.
(c) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loans) on the Closing Date, the Refinancing shall have been consummated in full with all Liens in favor of the existing lenders being unconditionally released; the Applicable The Administrative Agent shall have received a “pay-off” letter in form certified copies of the resolutions of the Board of Directors of each Loan Party approving this Agreement, and substance reasonably satisfactory to the Applicable Administrative Agent of all documents evidencing other necessary corporate action and governmental and regulatory approvals with respect to all debt being refinanced in the Refinancing; and the Applicable this Agreement.
(d) The Administrative Agent shall have received from any Person holding any Lien securing any such debteach Loan Party, such UCC and/or PPSA termination statements, mortgage releases, releases of assignments of leases and rents, releases of security interests in intellectual property and other instruments, in each case in proper form for recording, as the Applicable Administrative Agent shall have reasonably requested to release and terminate of record the Liens securing such debt.
(d) (i) Prior to or substantially concurrently with the initial Credit Extension (other than with respect to the Term A-2 Loansextent generally available in the relevant jurisdiction, a copy of a certificate or certificates of the Secretary of State (or other appropriate public official) on of the jurisdiction of its incorporation, dated reasonably near the Closing Date, (i) listing the Contribution, the Merger and the Transaction shall have been consummated in accordance with the Merger Agreement, the Separation Agreement and this Agreement and in the sequence set forth in Schedule 4.01(c)(i); provided that no amendment, modification or waiver charters of any term of the Merger Agreement or the Separation Agreement (other than any such amendment, modification or waiver that is not materially adverse to the interests of the Lenders) shall be made or grantedeach Loan Party, as the case may be, without and each amendment thereto on file in such office and certifying that such amendments are the prior written consent only amendments to each Loan Party’s charter, as the case may be, on file in such office, and (ii) stating, in the case of each Loan Party, that such Loan Party is authorized to transact business under the laws of the Arrangers jurisdiction of its place of formation.
(not i) The Administrative Agent shall have received a certificate or certificates of each of each Loan Party, signed on behalf of each Loan Party respectively, by a Secretary, an Assistant Secretary or a Responsible Officer thereof, dated the Closing Date, certifying as to be unreasonably withheld or delayed(A) (it being understood that the absence of any change greater than 10.0% (including any price decrease greater than 10.0%) amendments to the charter of such Loan Party, as the case may be, since the date of the original consideration payable pursuant certificates referred to in paragraph (d) above, (B) a true and correct copy of the Merger Agreement bylaws of each Loan Party, as the case may be, as in effect on the Closing Date, (C) the absence of any proceeding for the dissolution or liquidation of the Borrower or any Guarantor, as the case may be, (D) the truth, in all material respects (except that in each case, such materiality qualifier shall not be applicable to any representations and warranties that are already qualified or modified by “materiality,” “Material Adverse Effect” or similar language in the text thereof), of the representations and warranties set forth in Section 4.01(a) through (p), inclusive, (r), (s) and (u), as though made on and as of the date hereof will Closing Date, and (E) the absence, as of the Closing Date, of any Default or Event of Default; and (ii) each of such certifications shall be deemed true.
(f) The Administrative Agent shall have received a certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of each Loan Party, as the case may be, authorized to sign, and signing, this Agreement and the other Credit Documents to be materially adverse delivered hereunder on or before the Closing Date.
(g) The Administrative Agent shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Loan Parties, a favorable opinion, substantially in the form of Exhibit B hereto and as to such other matters as any Lender through the Administrative Agent may reasonably request.
(h) The Administrative Agent and the Lenders shall have received, at least ten business days prior to the interests of Closing Date (or such later date approved by the Lenders Administrative Agent) all documentation and will require other information that is required by the prior written consent of regulatory authorities under the Arrangers); andapplicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act.
Appears in 1 contract
Sources: Revolving Credit Agreement (Columbia Pipeline Group, Inc.)