Conditions Precedent to the Closing Date. This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date): (a) The Administrative Agent shall have received on or before the Closing Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender: (i) Duly executed counterparts of this Agreement. (ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a). (iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken. (iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document. (v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof. (vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015. (vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder. (viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer. (ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016. (x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date. (xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request. (xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect. (A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt. (xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act. (xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent.

Appears in 2 contracts

Sources: Credit and Guaranty Agreement (Dana Inc), Credit and Guaranty Agreement (Dana Inc)

Conditions Precedent to the Closing Date. ~~This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (~~The Closing Date and the obligation of the L/C Issuer and each Lender to make ~~an Advance or of~~ the ~~Issuing Bank to issue a Letter of~~ initial Credit ~~on the occasion of the Initial Extension of Credit hereunder is~~ Extensions shall, in each case, be subject to the ~~satisfaction of such conditions precedent before or concurrently with the Closing Date):~~following conditions: (a) The Administrative ~~Agent shall have received on or before the Closing Date~~ Agent’s receipt of the following, each ~~dated such day~~ 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 each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel: (i) a Note executed by the Borrower in favor of each Lender that has requested a Note at least two Business Days prior to the Closing Date; (ii) each Collateral Document set forth on Schedule 4.01(a)(ii), executed by each Loan Party thereto, together with: (A) certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank (if applicable); (B) evidence that all filings under the UCC shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; (C) deeds of trust, trust deeds, deeds to secure debt, mortgages, and landlord access waivers, each in form and substance reasonably satisfactory to the Administrative Agent and covering the owned and leased real properties listed on Schedule 4.01(a)(ii)(C) (together with each other mortgage or similar document delivered pursuant to Section 6.11, the “Mortgages”), duly executed by the appropriate Loan Party, together with: (1) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid; (2) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”), with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Liens, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property) and such coinsurance and direct access reinsurance as the Administrative Agent may deem reasonably necessary or desirable; (3) American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, and dated no more than 30 days before the Closing Date, certified to the Administrative Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects reasonably acceptable to the Administrative Agent; (4) Reserved; (5) estoppel and consent agreements executed by each of the lessors of the leased real properties listed on Schedule 4.01(a)(ii)(C), along with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, or (2) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form reasonably satisfactory to the Administrative Agent; (6) without limiting clause (8) below, evidence of the insurance required by the terms of the Mortgages; (7) an appraisal of each of the owned properties described on Schedule 4.01(a)(ii)(C) complying with the requirements of the Federal Financial Institutions Reform, Recovery and Enforcement Act of 1989; (8) the following documents (collectively, the “Flood Documents”): (A) a completed standard “life of loan” flood hazard determination form (a “Flood Determination Form”), (B) if the improvement(s) to the applicable improved real property is located in a special flood hazard area, a notification to the Borrower (“Borrower Notice”) and (if applicable) notification to the Borrower that flood insurance coverage under the National Flood Insurance Program (“NFIP”) is not available because the community does not participate in the NFIP, (C) documentation evidencing the Borrower’s receipt of the Borrower Notice (e.g., countersigned Borrower Notice, return receipt of certified U.S. Mail, or overnight delivery), and (D) if the Borrower Notice is required to be given and flood insurance is available in the community in which the property is located, a copy of one of the following: the flood insurance policy, the Borrower’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance reasonably satisfactory to the Administrative Agent (any of the foregoing being “Evidence of Flood Insurance”); and (9) such appraisals, legal opinions and other customary documents as the Administrative Agent may reasonably request with respect to such Mortgage or Mortgaged Property; and (D) any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent valid and subsisting first priority perfected Liens on the properties purported to be subject to the Collateral Documents set forth on Schedule 4.01(a)(ii), enforceable against all third parties in accordance with their terms; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; (iv) an opinion from (A) ▇▇▇▇▇ ▇▇▇▇ LLP, counsel to the Loan Parties, and (B) local or other counsel in each of the jurisdictions listed on Schedule 4.01(a)(iv), in each case as reasonably requested by the Administrative Agent, in the case of each of clauses (A) and (B), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender: (i) Duly executed counterparts of this Agreement. (ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a). (iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken. (iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.Administrative Agent; (v) ~~A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of~~ a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof. (vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015. (vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder. (viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ~~▇▇▇▇~~ the Borrower and its ~~Restricted Subsidiaries,~~ Subsidiaries (taken as a whole) on ~~a consolidated basis (~~the Closing Date after giving effect to the ~~Transactions)~~Transaction, from ~~its~~ the Chief Financial Officer of the Borrower; (vi) a certificate attesting to the compliance with clauses (c), (d), (h), (j), (k), (l) of this Section 4.01 on the Closing Date from a Responsible Officer of the Borrower; (vii) a Committed Loan Notice pursuant to Section 2.02; (viii) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties; and (b) All reasonable fees and out-of-pocket expenses required to be paid and invoiced on or ~~other financial officer~~before the Closing Date shall have been, or concurrently with the closing of the Transaction shall be, paid in full in cash. (ixc) ~~Copies of~~ Prior to or substantially concurrently with (iincluding on the same Business Day as) ~~at least five (5) days prior to~~ the initial Credit Extension on the Closing Date, ~~audited financial statements of ▇▇▇▇ and its Subsidiaries for each of~~ the ~~three most recently~~Spin-~~ended Fiscal Years ending more than 90 days prior to the Closing Date; and~~ Off shall have been consummated. (iid) ~~customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries~~ After giving effect to consummation of the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016. (x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, Transactions on the Closing Date, the Borrower and its Subsidiaries shall have outstanding no Indebtedness or preferred Equity Interests other than (i) the Loans and L/C Obligations, (ii) the Senior Notes in an aggregate principal amount not to exceed $775,000,000, the proceeds of which shall have been applied to consummate the Spin-Off, and (iii) Indebtedness permitted by Section 7.03(b). (xie) ~~A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto,~~ The Administrative Agent and ~~addressing such other matters as~~ the Lenders ~~may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to~~ shall have received the ~~Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request~~Annual Financial Statements. (~~xii~~f) ~~Since December 31, 2015, there~~ The Administrative Agent and the Lenders shall ~~not~~ have ~~occurred a Material Adverse Effect~~received the Pro Forma Financial Statements. (Ag) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the The Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents on or ~~instruments evidencing or necessary to release all Liens on the Collateral securing such Debt. (xiv) The Lenders shall have received, at least five (5) days~~ prior to the Closing ~~Date,~~ Date all documentation and other information ~~required~~ reasonably requested in writing by ~~bank regulatory authorities under~~ them at least five Business Days prior to the Closing Date in order to allow the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including ~~without limitation,~~ the ~~Patriot~~ Act. (xvh) ~~For each Material Real Property~~All approvals, consents, exemptions, authorizations, or other actions by, or notices to, or filings with, any Governmental Authority or any other Person necessary or required for the consummation of the Transaction have been received and all applicable waiting periods in connection with the Transaction have expired without any action having been taken by any Governmental Authority restraining, preventing or imposing materially adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries or that could seek or threaten any of the foregoing, and no Law or regulation shall be applicable that has such effect. (Ai) The Administrative Agent shall have received a ~~Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property,~~ certificate from the Borrower’s insurance broker or other evidence reasonably satisfactory to ~~the Administrative Agent~~ it that ~~the Flood Insurance Requirements have been satisfied~~all insurance required to be maintained pursuant to Section 6.06 is in full force and effect, ~~and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located,~~ together with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to endorsements naming the Administrative Agent, for the benefit of Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 6.06. (j) The representations and warranties of the Borrower and each other Loan Party contained in Article V hereof shall be true and correct in all material respects; provided that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects. (k) There shall not exist any action, suit, investigation, litigation, proceeding, hearing or other legal or regulatory developments, pending or threatened in any court or before any arbitrator or Governmental Authority that, in the reasonable opinion of the Administrative Agent, singly or in the aggregate, materially impairs the Transactions, the financing thereof or any of the other transactions contemplated by the Loan Documents, or that could reasonably be expected to have a Material Adverse Effect. (l) There has been no change, occurrence or development since September 30, 2011 that could reasonably be expected to have a Material Adverse Effect.

Appears in 2 contracts

Sources: Credit Agreement, Credit Agreement (Post Holdings, Inc.)

Conditions Precedent to the Closing Date. ~~This Agreement shall become effective on~~ The obligations of each L/C Issuer and ~~as of the first date on which the following conditions precedent have been satisfied (and the obligation of~~ each Lender to make ~~an Advance or of~~ the ~~Issuing Bank to issue a Letter of~~ initial Credit Extensions on the ~~occasion of the Initial Extension of Credit hereunder is~~ Closing Date (if any) shall, in each case, be subject to the ~~satisfaction of such conditions precedent before or concurrently with the Closing Date):~~following conditions: (a) The Administrative ~~Agent shall have received on or before the Closing Date~~ Agent’s receipt of the following, each ~~dated such day~~ of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by an Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative Agent: (i) a Note executed by the Borrower in favor of each Lender that has requested a Note at least two Business Days prior to the Closing Date; (ii) executed copies of (x) this Agreement, and (y) each Security Document set forth on Schedule 4.01(a)(ii), executed by each Loan Party thereto, together with: (A) evidence that all filings under the UCC shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; and (B) any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent valid and subsisting first priority perfected Liens on the properties purported to be subject to the Security Documents set forth on Schedule 4.01(a)(ii), enforceable against all third parties in accordance with their terms; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Officer thereof authorized to act as an Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; (iv) an opinion from (A) Milbank LLP, counsel to the Loan Parties, and (B) local or other counsel in each of the jurisdictions listed on Schedule 4.01(a)(iv), in each case as reasonably requested by the Administrative Agent, in the case of each of clauses (A) and (B), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender: (i) Duly executed counterparts of this Agreement. (ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a). (iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken. (iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.Administrative Agent; (v) ~~A copy~~ a certificate attesting to the Solvency of the ~~charter or other constitutive document of each Loan Party~~ Borrower and ~~each amendment thereto, certified~~ its Subsidiaries (taken as of a ~~date reasonably acceptable~~ whole) on the Closing Date after giving effect to the ~~Administrative Agent) by~~ Transactions, from the ~~Secretary of State~~ Chief Financial Officer of the ~~jurisdiction of its incorporation or organization~~Borrower, substantially in the form attached hereto as ~~the case may be, thereof as being a true and correct copy thereof.~~Exhibit J; (vi) A a certificate attesting to the compliance with clauses (d), (e), (f) and (h) of ~~each Loan Party signed~~ this Section 4.01 on ~~behalf of such Loan Party by a Responsible Officer, dated~~ the Closing Date ~~(the statements made in which certificate shall be true on and as~~ from an Officer of the ~~Closing Date), certifying as to~~ Borrower; and (Avii) ~~the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of~~ if any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit Loans are to be made on the Closing ~~Date (including the migration of any Existing Letters of Credit) or the application of proceeds~~Date, ~~if any, therefrom, that would constitute~~ a ~~Default; and (F) the absence of a Material Adverse Effect since December 31, 2015~~Committed Loan Notice pursuant to Section 2.02. (~~vii~~b) ~~A certificate~~ All reasonable fees and out-of-pocket expenses due and payable to the Lenders, the Arrangers and the Administrative Agent and required to be paid on or prior to the Closing Date pursuant to Agency Fee Letter shall have been paid or shall have been authorized to be deducted from the proceeds of the ~~Secretary~~ initial funding under the Facilities, so long as any such fees or ~~an Assistant Secretary of each Loan Party certifying~~ expenses not expressly set forth in the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder. (viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer. (ix) Copies of (i) at least five (5) Agency Fee Letter have been have been invoiced not less than three business days prior to the Closing Date~~, audited financial statements of ▇▇▇▇~~ . (c) The Administrative Agent and ~~its Subsidiaries for each of~~ the Lenders shall have received at least three ~~most recently-ended Fiscal Years ending more than 90 days~~ Business Days prior to the Closing Date~~; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions~~, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016. (x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date. (xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request. (xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect. (A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees requested in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt. (xiv) The Lenders shall have received, writing at least ~~five (5) days~~ seven Business Days prior to the Closing Date, all documentation and other information ~~required by bank regulatory authorities under~~ that the Administrative Agent and the Lenders reasonably determine is necessary in order to allow the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including ~~without limitation,~~ the ~~Patriot Act~~Act and the Beneficial Ownership Regulation. (xvd) ~~For~~ The representations and warranties of the Borrower and each other Loan Party contained in Article 5 hereof shall be true and correct in all material respects; provided that any representation and warranty that is qualified as to “materiality,” “Material ~~Real Property~~Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects. (e) There has been no change, occurrence or development since September 30, 2020 that could reasonably be expected to have a Material Adverse Effect. (f) At the time of and immediately after giving effect to the Transactions, no Default shall have occurred and be continuing. (g) [Reserved]. (h) Prior to or substantially concurrently with the Closing Date, (Ai) ~~a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to~~ the ~~Administrative Agent that the Flood Insurance Requirements~~ 2026 Senior Secured Notes shall have been ~~satisfied,~~ issued and (Cii) ~~favorable opinions of local counsel for~~ the ~~Loan Parties (1)~~ Existing Credit Agreement shall have been paid off in ~~states in which the Material Real Property is located, with respect~~ full and terminated and all liens thereunder shall have been released pursuant to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance a customary payoff letter reasonably satisfactory to the Administrative Agent.

Appears in 2 contracts

Sources: Credit Agreement (Turning Point Brands, Inc.), Credit Agreement (Turning Point Brands, Inc.)

Conditions Precedent to the Closing Date. This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date): (a) The Administrative Agent shall have received on or before the Closing Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender: (i) ~~Duly~~ D▇▇▇ executed counterparts of this Agreement. (ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a). (iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken. (iv) Certified copies of the resolutions of the boards of directors of each of ▇D▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document. (v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof. (vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015. (vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder. (viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇D▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer. (ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇D▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ~~▇▇▇▇~~ Dana and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇D▇▇▇ dated May 5, 2016. (x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date. (xi) A favorable opinion of (A) P▇▇▇, W▇▇▇▇, ~~Weiss~~R▇▇▇▇▇▇, ~~Rifkind, ▇~~W▇▇▇▇▇▇ & ▇G▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇S▇▇▇▇▇▇▇, Loop & ▇K▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request. (xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect. (A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇D▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇D▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt. (xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act. (xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent.

Appears in 1 contract

Sources: Credit and Guaranty Agreement (DANA Inc)

Appears in 1 contract

Sources: Credit Agreement (Post Holdings, Inc.)

Conditions Precedent to the Closing Date. ~~This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (and the~~ The obligation of each Lender to make ~~an Advance or~~ its initial extension of credit hereunder and the occurrence of the ~~Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder~~ Closing Date is subject to the fulfillment (or waiver), to the reasonable satisfaction of ~~such conditions precedent before or concurrently with~~ the ~~Closing Date):~~Agent and each Lender, of each of the following conditions: (a) The ~~Administrative~~ Agent shall have received (i) this Agreement, (ii) the Pledge and Security Agreement pursuant to which a Lien is granted on the Collateral in favor of the Agent, for the ratable benefit of the Lenders, and pursuant to which the Agent is authorized to file customary “all assets” UCC-1 financing statements; (iii) the Commitment Letter; (iv) each other Loan Document, each duly executed and delivered by each party hereto or ~~before~~ thereto; (b) The Agent shall have received the written opinions, dated the Closing Date, of counsel to the Loan Parties, with respect to this Agreement and the other Loan Documents; (c) The Agent shall have received a certificate of status with respect to each Loan Party dated within 30 days of the date of effectiveness of this Agreement, or confirmed by facsimile, if facsimile confirmation is available, each such certificate to be issued by the applicable Governmental Authority, and which certificates shall indicate that the applicable Loan Party is in good standing in such jurisdiction; (d) The Agent shall have received a copy of each Loan Party’s Governing Documents, certified by a Responsible Officer with respect to the Borrower; (e) The Agent shall have received a copy of the resolutions or the unanimous written consents with respect to each Loan Party, certified as of the Closing Date by a Responsible Officer, authorizing (A) the ~~following~~transactions contemplated by the Loan Documents to which such Loan Party is or will be a party, ~~each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified)~~ and (~~except for~~ B) the Notes) in sufficient copies for each Lender: (i) Duly executed counterparts of this Agreement. (ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a). (iii) The Security Agreementexecution, ~~together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect~~ delivery and ~~protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken. (iv) Certified copies of the resolutions of the boards of directors~~ performance by such Loan Party of each ~~of ▇▇▇▇~~ Loan Document to which it is or will be a party and ~~each Guarantor approving~~ the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document. (v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof. (vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015. (vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered ~~hereunder.~~by it in connection herewith and therewith; (~~viii~~f) ~~Certificates, in substantially~~ The Agent shall have received a signature and incumbency certificate of the ~~form of Exhibit I attesting~~ Responsible Officer with respect to each Loan Party executing this Agreement and the other Loan Documents not previously delivered to the ~~Solvency of ▇▇▇▇ and its Restricted Subsidiaries~~Agent to which it is a party, on certified by a ~~consolidated basis~~ Responsible Officer; (~~after giving effect~~ g) The Borrower shall have paid all expenses required to be reimbursed to the ~~Transactions), from its Chief Financial Officer or other financial officer.~~ Agent pursuant to the terms of this Agreement in connection with the transactions (~~ix) Copies of (i)~~ to the extent invoiced at least ~~five (5) days~~ three Business Days prior to the Closing Date) and all fees due on the Closing Date pursuant to the Commitment Letter; (h) The Arrangers shall have received the following (collectively, the “Historical Financial Statements”): (i) (A) audited ~~financial~~ consolidated balance sheets and related consolidated statements of ~~▇▇▇▇~~ income, comprehensive income, stockholders’ equity and ~~its Subsidiaries for each~~ cash flows of the ~~three~~ Borrower, prepared in accordance with GAAP, for the two most ~~recently-~~recent fiscal years that shall have ended ~~Fiscal Years ending more than 90~~ at least 60 days prior to the Closing Date; and (iiB) ~~customary~~ unaudited ~~pro forma financial~~ consolidated balance sheets and related consolidated statements ~~as to ▇▇▇▇~~ of income, comprehensive income, stockholders’ equity and ~~its Subsidiaries giving effect to~~ cash flows of the ~~Transactions~~Borrower, ~~in each case~~ prepared in ~~a manner consistent~~ accordance with ~~the projections in the presentation provided by ▇▇▇▇ dated May 5~~GAAP, ~~2016. (x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications~~ for each ~~Letter of Credit~~ fiscal quarter (other than ~~any Existing Letter~~ the fourth fiscal quarter) ended after the date of ~~Credit)~~ the most recent balance sheet delivered pursuant to ~~be issued, on the Closing Date. (xi) A favorable opinion of~~ clause (A) ~~▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto,~~ above and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request. (xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect. (A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least ~~one (1) day~~ 40 days prior to the Closing Date, in the case of clauses (A) ~~and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable~~ and (B) above. The Arrangers hereby acknowledge that the ~~Administrative~~ Borrower’s public filing with the SEC of any required financial statements will satisfy the applicable requirements of this clause (i); (i) The Arrangers shall have received an officer’s certificate (as to the satisfaction of the closing conditions set forth in clause (j) of this Section 3.1 and (B) a solvency certificate in the form of Exhibit F from the Borrower executed by its chief financial officer (or person with equivalent responsibilities); (j) At the time of and upon giving effect to the borrowing and application of the Loans on the Closing Date, (i) the representations and warranties of Loan Parties contained in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the Closing Date (provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates) and (ii) no Event of Default or Unmatured Event of Default shall have occurred and be continuing; (k) The Refinancing shall be consummated substantially concurrently with the initial funding of the Credit Facilities; (l) The Agent shall have received (i) all filings and recordations that are necessary to perfect the security interests of the Agent, on behalf of the Secured Parties, in the Collateral and the Agent shall have received evidence reasonably satisfactory to ~~it of~~ the ~~repayment of all Debt under the Existing Credit Agreement, at which time all commitments,~~ Agent that upon such filings and recordations such security interests constitute valid and ~~guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full~~ perfected First Priority Liens thereon (~~other than obligations which~~ subject to Liens permitted by ~~their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder~~Section 6.2) and ~~▇▇▇▇ shall have, substantially concurrently with~~ (ii) (A) original stock certificates or other certificates evidencing the ~~Initial Extension of Credit hereunder, delivered~~ certificated Equity Interests pledged pursuant to the ~~Administrative Agent copies of all documents or instruments evidencing or necessary~~ Collateral Documents, together with an undated stock power for each such certificate duly executed in blank by the registered owner thereof and (B) each original promissory note pledged pursuant to ~~release all Liens on~~ the Collateral ~~securing~~ Documents together with an undated allonge for each such ~~Debt.~~promissory note duly executed in blank by the holder thereof; (~~xiv~~m) The ~~Lenders~~ Arrangers shall have received, at least five ~~(5)~~ days prior to the Closing Date, all documentation and other information requested by it in writing to the Borrower at least 10 Business Days prior to the Closing Date that is required by ~~bank~~ regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without ~~limitation~~limitation the USA Patriot Act and the Beneficial Ownership Regulation (including, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification); (n) At least two (2) Business Days prior to the Closing Date, the ~~Patriot Act.~~Borrower shall have delivered to the Agent a Request for Borrowing pursuant to the terms of Section 2.6 hereof; and (xvo) ~~For each Material Real Property~~The Agent shall have received a completed Perfection Certificate, dated the Closing Date and signed by a Responsible Officer, together with all attachments contemplated thereby, and the results of a search of the Uniform Commercial Code (~~A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i~~or equivalent), tax and judgment, United States Patent and Trademark Office and United States Copyright Office filings made with respect to the Loan Parties in the jurisdictions reasonably requested by the Agent and copies of the financing statements (Bor similar documents) if disclosed by such ~~Material Real Property is a Special Flood Hazard Property,~~ search and evidence reasonably satisfactory to the ~~Administrative~~ Agent that the ~~Flood Insurance Requirements~~ Liens other than Liens permitted pursuant to Section 6.2 have ~~been satisfied~~been, ~~and~~ or will be simultaneously or substantially concurrently with the Closing Date, released (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance or arrangements reasonably satisfactory to the ~~Administrative~~ Agent ~~and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of~~ for such ~~Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent~~release shall have been made).

Appears in 1 contract

Sources: Credit Agreement (P10, Inc.)

Conditions Precedent to the Closing Date. ~~This Agreement shall become effective on~~ The effectiveness of this Third Amended and ~~as of the first date on which the following conditions precedent have been satisfied (~~Restated Credit Agreement, and the obligation of each Lender to make an Advance or of ~~the~~ any Issuing Bank to issue a Letter of ~~Credit on~~ Credit, and the ~~occasion~~ occurrence of the ~~Initial Extension of Credit hereunder~~ Closing Date, is subject to the satisfaction of ~~such~~ the following conditions ~~precedent before or concurrently with the Closing Date):~~precedent: (a) The Administrative Agent shall have received on or before the Closing Date the following, each dated such day (unless otherwise specified), in form and substance ~~reasonably~~ satisfactory to the ~~Lenders~~ Joint Lead Arrangers and the Administrative Agent (unless otherwise specified) and (except for the Notes) in sufficient copies for each ~~Lender~~Lender Party: (i) ~~Duly executed counterparts of this Agreement. (ii) The~~ Notes payable to the order of the Lenders to the extent timely requested by such Lenders, pursuant to Section 2.16. (ii) The Administrative Agent shall have received a copy of (A) this Agreement, (B) the Subsidiary Guaranty,(C) the Security Agreement, and (D) the Subordinated Intercompany Note, in ~~accordance with Section 2.16(a)~~each case duly executed and delivered by each party thereto. (iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken. (iv) Certified copies of (A) the resolutions of the ~~boards~~ board of directors or of the members or managers of each ~~of ▇▇▇▇~~ Loan Party approving the Transaction and each ~~Guarantor approving the execution and delivery of this Agreement and each other~~ Loan Document to which it ~~is,~~ is or is ~~intended~~ to be a party, and of (B) all documents evidencing other necessary ~~constitutive~~ corporate action ~~and, if any, material~~ and governmental and other third party approvals and consents, if any, with respect to ~~this Agreement,~~ the ~~other Transactions~~ Transaction and each ~~other~~ Loan ~~Document~~Document to which it is or is to be a party. (viv) A copy of a certificate of the ~~charter~~ Secretary of State of the jurisdiction of incorporation or ~~other constitutive document~~ organization of each Loan Party, dated reasonably near the Closing Date, certifying (A) as to a true and correct copy of the charter, articles of incorporation or articles of organization, as the case may be (“Organizational Documents”) of such Loan Party and each amendment ~~thereto~~thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to such Loan Party’s Organizational Documents on file in such Secretary’s office, ~~certified~~ (~~as of a date reasonably acceptable~~ 2) if applicable, such Loan Party has paid all franchise taxes to the ~~Administrative Agent~~date of such certificate and (C) by such Loan Party is duly incorporated or organized and in good standing or presently subsisting under the ~~Secretary~~ laws of the State of the jurisdiction of its incorporation or organization. (v) A copy of a certificate of the Secretary of State of each jurisdiction reasonably requested by the Joint Lead Arrangers, dated reasonably near the Closing Date, stating that a Loan Party is duly qualified and in good standing as a foreign entity in such State and has filed all annual reports required to be filed to the ~~case may be, thereof as being a true and correct copy thereof~~date of such certificate. (vi) A certificate of each Loan ~~Party~~ Party, signed on behalf of such Loan Party by a Responsible Officer, dated the date of the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the ~~accuracy and completeness~~ absence of any amendments to the ~~charter (or other applicable formation document)~~ Organizational Documents of such Loan Party ~~and~~ since the ~~absence~~ date of ~~any changes thereto;~~ the Secretary of State’s certificate referred to in Section 3.01(a)(iv), (B) ~~the accuracy~~ a true and ~~completeness~~ correct copy of the bylaws (or ~~other applicable organizational document)~~ operating agreement, as applicable, of such Loan Party as in effect on the date on which the resolutions ~~of the board of directors (or persons performing similar functions) of such Person~~ referred to in Section ~~3.01(a)(iv~~3.01(a)(iii) were adopted and on the date of the Closing Date, (C) the due incorporation/organization and good standing or valid existence of such Loan Party as a corporation or limited liability company organized under the laws of the jurisdiction of its incorporation or organization, and the absence of any ~~changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any~~ proceeding ~~known to be pending~~ for the ~~dissolution,~~ dissolution or liquidation ~~or other termination of the existence~~ of such Loan Party; , and (D) with respect to the ~~accuracy in all material respects~~ certificate of the Borrower only (x) the truth of the representations and warranties ~~made by such Loan Party~~ contained in the Loan Documents ~~to which it is or is to be a party~~ as though made on and as of the ~~Closing Date, before and after giving effect to all~~ date of the ~~Borrowings~~ Closing Date and ~~the issuance of all of the Letters of Credit to be made on such date~~ (~~including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E~~y) the absence of any event occurring and continuing, or resulting from ~~any of the Borrowings or the issuance of any of the Letters of Credit to be made on~~ the Closing ~~Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom~~Date, that ~~would constitute~~ constitutes a Default~~; and (F) the absence of a Material Adverse Effect since December 31, 2015~~. (vii) A certificate of ~~the Secretary or an Assistant Secretary~~ a Responsible Officer of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign ~~this Agreement~~ each Loan Document to which it is or is to be a party and the other documents to be delivered ~~hereunder~~hereunder and thereunder. (viii) ~~Certificates~~Certified copies of each of the Related Documents, duly executed by the parties thereto and in form and substance satisfactory to the Lender Parties, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent or the Joint Lead Arrangers shall request. (ix) A solvency certificate, in substantially the form of Exhibit I F, attesting to the Solvency of ~~▇▇▇▇~~ the Borrower and its ~~Restricted~~ Consolidated Subsidiaries, on taken as a ~~consolidated basis (~~Consolidated whole, both before and after giving effect to the ~~Transactions)~~Transaction, from ~~its~~ the Chief Financial Officer ~~or other financial officer. (ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each~~ of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016Borrower. (x) To Audited annual financial statements dated December 31, 2017, interim financial statements dated the ~~extent applicable~~end of the most recent fiscal quarter for which financial statements are available, ~~a Notice~~ pro forma Consolidated financial statements as to the Borrower and its Subsidiaries and forecasts prepared by management of ~~Borrowing for any Borrowing~~ the Borrower, in form and substance satisfactory to ~~be made~~the Administrative Agent and the Joint Lead Arrangers, ~~and/or one or more Letter~~ of ~~Credit Applications~~ balance sheets, income statements and cash flow statements on an annual basis for each ~~Letter of Credit (other than any Existing Letter of Credit) to be issued, on~~ year following the Closing Date until the Termination Date. (xi) [Reserved]. (xii) A favorable opinion of ~~(A) ▇▇▇▇, Weiss, Rifkind,~~ ▇▇▇▇▇▇▇ ~~& ▇~~▇▇▇▇▇▇▇, ~~LLP,~~ LLP counsel to for the Loan Parties, in substantially the form of Exhibit ~~D-1 hereto,~~ G hereto and ~~addressing~~ as to such other matters as the ~~Lenders~~ Administrative Agent or the Joint Lead Arrangers may reasonably ~~request (including as to Delaware corporate law matters)~~request, ~~and (B) ▇▇▇▇▇▇▇▇~~and, ~~Loop & ▇▇▇▇▇▇▇▇~~if applicable, ~~LLP, Michigan~~ a favorable opinion of appropriate local counsel to the Loan Parties. (xiii) Evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that a nationally recognized Process Agent shall have been appointed as Process Agent under Section 8.13 hereof. (b) The Administrative Agent and the Joint Lead Arrangers shall be satisfied with the corporate and legal structure and capitalization of each Loan Party and each of its Subsidiaries the Equity Interests in which Subsidiaries are being pledged pursuant to the Loan Documents, including the terms and conditions of the charter, bylaws and each class of Equity Interest in each Loan Party and each such Subsidiary and of each agreement or instrument relating to such structure or capitalization. (c) All Equity Interests of the Guarantors shall be owned by the Borrower or one or more of the Borrower’s Subsidiaries, in ~~substantially~~ each case free and clear of any Lien other than Liens created under the ~~form~~ Loan Documents. (d) The Administrative Agent and the Joint Lead Arrangers shall be satisfied that all Existing Debt, other than Surviving Debt, has been prepaid, redeemed or defeased in full or otherwise satisfied and extinguished and that all Surviving Debt shall be on terms and conditions satisfactory to the Administrative Agent and the Joint Lead Arrangers. (e) Before giving effect to the Transaction, there shall have occurred no Material Adverse Change since December 31, 2017. (f) There shall exist no action, suit, investigation, litigation or proceeding affecting any Loan Party or any of ~~Exhibit D-2~~ its Subsidiaries pending or threatened before any court, governmental agency or arbitrator that (i) could reasonably be expected to have a Material Adverse Effect other than the matters described on Schedule 4.01(f) hereto (the “Disclosed Litigation”) or (ii) purports to affect the legality, validity or enforceability of any Transaction Document or the consummation of the Transaction, and ~~addressing~~ there shall have been no adverse change in the status, or financial effect on, any Loan Party or any of its Subsidiaries, of the Disclosed Litigation from that described on Schedule 4.01(f) hereto. (g) All governmental and third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of any conditions that are not acceptable to the Joint Lead Arrangers and the Administrative Agent) and shall remain in effect; and no law or regulation shall be applicable in the judgment of the Joint Lead Arrangers and the Administrative Agent, in each case that restrains, prevents or imposes materially adverse conditions upon the Transaction. (h) The Borrower shall have paid (i) all accrued fees of the Joint Lead Arrangers, the Agents and the Lender Parties and all accrued expenses of the Joint Lead Arrangers (including the accrued fees and expenses of counsel to the Joint Lead Arrangers and the Administrative Agent, and local counsel to the Lender Parties), and (ii) all accrued and unpaid interest, fees, expenses, and reimbursement Obligations pursuant to the terms of the Existing Credit Agreement or otherwise due in respect of the Existing Credit Facilities. (i) The Refinancing shall have been consummated or shall be consummated or concurrently consummated with the Closing Date, all advances and other amounts owing under the Existing Credit Agreement shall have been repaid in full (or, at the election of the applicable Existing Lenders which are also Initial Lenders hereunder, outstanding advances exchanged for Advances, pursuant the applicable provisions of Section 2.01 hereof). The commitments thereunder shall have terminated and the letters of credit issued thereunder shall have been canceled or the reimbursement of draws thereunder provided for in a manner acceptable to the Paying Agent (it being understood that treating such letters of credit as Existing Letters of Credit hereunder is acceptable to the Paying Agent), and all Liens and guaranties supporting any Debt under the Existing Credit Agreement shall have been fully released and terminated. (j) The Lenders shall have received evidence that all insurance required to be maintained pursuant to Section 5.01 hereof has been obtained and is in effect, together with all certificates of insurance corresponding thereto, which certificates shall name the Collateral Agent, on behalf of the Secured Parties, as an additional insured or loss payee, as the case may be. (k) Each of the Security Agreement and the Subsidiary Guaranty shall be in full force and effect, duly executed by and enforceable against (i) the Borrower, in the case of the Security Agreement, and (b) each Subsidiary of the Borrower that is required to be a party thereto pursuant to the terms of this Agreement, in the case of the Security Agreement and the Subsidiary Guaranty. (l) The Borrower shall be in compliance with Section 1 of the Security Agreement and shall otherwise be in compliance with all of the terms and conditions set forth in the Security Agreement. Each Subsidiary that is required pursuant to the terms of this Agreement to be a party to the Security Agreement and the Subsidiary Guaranty shall be in compliance with Section 1 of the Security Agreement and Section 1 of the Subsidiary Guaranty and shall otherwise be in compliance with all of the terms and conditions set forth in the Security Agreement and the Subsidiary Guaranty. (m) The Administrative Agent (or the Administrative Agent’s counsel, on its behalf) shall have received certified copies of UCC, tax, litigation and judgment lien searches, or, if applicable, equivalent searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other ~~matters~~ searches as the ~~Lenders~~ Administrative Agent may reasonably request. (~~xii~~n) ~~Since December 31, 2015, there shall not have occurred a Material Adverse Effect.~~ The Administrative Agent (A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the ~~Lender Parties shall have been paid in full in cash to the extent due and payable and (B~~Administrative Agent’s counsel, on its behalf) ~~the Administrative Agent~~ shall have received evidence ~~reasonably satisfactory to it~~ of the ~~repayment~~ completion of all ~~Debt under~~ other recordings and filings of or with respect to the ~~Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt~~ Security Agreement and the ~~related documents thereunder will be terminated, returned and discharged in full (~~taking of all other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to actions that the Administrative Agent ~~copies of all documents~~ and the Collateral Agent may deem necessary or ~~instruments evidencing or necessary~~ desirable in order to ~~release all~~ perfect and maintain the Liens on the Collateral ~~securing such Debt~~created thereby. (~~xiv~~o) The ~~Lenders~~ Administrative Agent and the Lender Parties shall have received, at least five (5) ~~days~~ Business Days prior to the Closing Date, an executed Certificate of Beneficial Ownership (in form and substance acceptable to the Administrative Agent and each Lender Party), and all other documentation and other information ~~required by bank regulatory authorities under~~ reasonably requested at least ten (10) days prior to the Closing Date in connection with applicable “know your customer” and anti-money laundering rules and regulations, including ~~without limitation,~~ the Patriot Act. (xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent.

Appears in 1 contract

Sources: Credit Agreement (Steel Dynamics Inc)

Conditions Precedent to the Closing Date. ~~This Agreement shall become effective on~~ The amendment and as restatement of the ~~first date~~ Original Credit Agreement on ~~which~~ the ~~following conditions precedent have been satisfied (~~Closing Date and the ~~obligation~~ obligations of each L/C Issuer and each Lender to make ~~an Advance or of~~ the ~~Issuing Bank to issue a Letter of~~ initial Credit Extensions on the ~~occasion of the Initial Extension of Credit hereunder is~~ Closing Date (if any) shall, in each case, be subject to the ~~satisfaction of such conditions precedent before or concurrently with the Closing Date):~~following conditions: (a) The Administrative ~~Agent shall have received on or before the Closing Date~~ Agent’s receipt of the following, each ~~dated such day~~ 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 each in form and substance reasonably satisfactory to the Administrative Agent: (i) a Note executed by the Borrower in favor of each Lender that has requested a Note at least two (2) Business Days prior to the Closing Date; (ii) executed copies of (x) this Agreement, and (y) each Collateral Document set forth on Schedule 4.01(a)(ii), executed by each Loan Party thereto, together with: (A) evidence that all filings under the UCC shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; and (B) any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent valid and subsisting first priority perfected Liens on the properties purported to be subject to the Collateral Documents set forth on Schedule 4.01(a)(ii), enforceable against all third parties in accordance with their terms; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; (iv) an opinion from (A) ▇▇▇▇▇ ▇▇▇▇ LLC, counsel to the Loan Parties, and (B) local or other counsel in each of the jurisdictions listed on Schedule 4.01(a)(iv), in each case as reasonably requested by the Administrative Agent, in the case of each of clauses (A) and (B), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender: (i) Duly executed counterparts of this Agreement. (ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a). (iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken. (iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.Administrative Agent; (v) ~~A copy~~ a certificate attesting to the Solvency of the ~~charter or other constitutive document of each Loan Party~~ Borrower and ~~each amendment thereto, certified~~ its Subsidiaries (taken as of a ~~date reasonably acceptable~~ whole) on the Closing Date after giving effect to the ~~Administrative Agent) by~~ Transactions, from the ~~Secretary of State~~ Chief Financial Officer of the ~~jurisdiction of its incorporation or organization~~Borrower, substantially in the form attached hereto as ~~the case may be, thereof as being a true and correct copy thereof.~~Exhibit K; (vi) A a certificate attesting to the compliance with clauses (d), (e) and (f) of ~~each Loan Party signed~~ this Section 4.01 on ~~behalf of such Loan Party by a Responsible Officer, dated~~ the Closing Date ~~(the statements made in which certificate shall be true on and as~~ from a Responsible Officer of the ~~Closing Date), certifying as to~~ Borrower; and (Avii) ~~the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of~~ if any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit Loans are to be made on the Closing ~~Date (including the migration of any Existing Letters of Credit) or the application of proceeds~~Date, ~~if any, therefrom, that would constitute~~ a ~~Default; and (F) the absence of a Material Adverse Effect since December 31, 2015~~Committed Loan Notice pursuant to Section 2.02. (~~vii~~b) ~~A certificate~~ All reasonable fees and out-of-pocket expenses due and payable to the Lenders, the Arrangers and the Administrative Agent and required to be paid on or prior to the Closing Date pursuant to the Engagement Letter and Fee Letters shall have been paid or shall have been authorized to be deducted from the proceeds of the ~~Secretary~~ initial funding under the Facilities, so long as any such fees or ~~an Assistant Secretary of each Loan Party certifying~~ expenses not expressly set forth in the ~~names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.~~ Fee Letters have been have been invoiced not less than three (~~viii~~3) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer. (ix) Copies of (i) at least five (5) business days prior to the Closing Date~~, audited financial statements of ▇▇▇▇~~ . (c) The Administrative Agent and ~~its Subsidiaries for each of~~ the Lenders shall have received at least three ~~most recently-ended Fiscal Years ending more than 90 days~~ Business Days prior to the Closing Date~~; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions~~, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016. (x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date. (xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request. (xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect. (A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees requested in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt. (xiv) The Lenders shall have received, writing at least ~~five (5) days~~ seven Business Days prior to the Closing Date, all documentation and other information ~~required by bank regulatory authorities under~~ that the Administrative Agent and the Lenders reasonably determine is necessary in order to allow the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including ~~without limitation,~~ the ~~Patriot Act~~Act and the Beneficial Ownership Regulation. (xvd) ~~For~~ The representations and warranties of the Borrower and each other Loan Party contained in Article 5 hereof shall be true and correct in all material respects; provided that any representation and warranty that is qualified as to “materiality,” “Material ~~Real Property,~~ Adverse Effect” or similar language shall be true and correct (~~A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory~~ after giving effect to ~~the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1~~any qualification therein) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agentall respects.

Appears in 1 contract

Sources: Credit Agreement (Post Holdings, Inc.)

Appears in 1 contract

Sources: Credit Agreement (Yesway, Inc.)

Conditions Precedent to the Closing Date. ~~This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (~~The Closing Date and the obligation of the L/C Issuer and each Lender to make ~~an Advance or of~~ the ~~Issuing Bank to issue a Letter of~~ initial Credit ~~on the occasion of the Initial Extension of Credit hereunder is~~ Extensions shall, in each case, be subject to the ~~satisfaction of such conditions precedent before or concurrently with the Closing Date):~~following conditions: (a) The Administrative ~~Agent shall have received on or before the Closing Date~~ Agent’s receipt of the following, each ~~dated such day~~ 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 each in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel: (i) executed counterparts of the Guaranty; (ii) a Note executed by the Borrower in favor of each Lender that has requested a Note at least two Business Days prior to the Closing Date; (iii) each Collateral Document set forth on Schedule 4.01(a)(iii), executed by each Loan Party thereto, together with: (A) certificates, if any, representing the Pledged Equity referred to therein accompanied by undated stock powers executed in blank (if applicable); (B) evidence that all filings under the UCC shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; (C) deeds of trust, trust deeds, deeds to secure debt, mortgages, leasehold mortgages and leasehold deeds of trust, each in form and substance reasonably satisfactory to the Administrative Agent and covering the owned and leased real properties listed on Schedule 4.01(a)(iii)(C) (together with each other mortgage or similar document delivered pursuant to Section 6.11, in each case as amended, the “Mortgages”), duly executed by the appropriate Loan Party, together with: (1) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid; (2) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”), with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Liens and other Liens permitted under the Loan Documents, and providing for such other affirmative insurance (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the applicable property) and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable; (3) American Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable) have been paid, and dated no more than 30 days before the Closing Date, certified to the Administrative Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent; (4) engineering, soils and other reports and environmental assessment reports as to the properties described in the Mortgages, from professional firms acceptable to the Administrative Agent; (5) estoppel and consent agreements executed by each of the lessors of the leased real properties listed on Schedule 4.01(a)(iii)(C), along with (1) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the owner of the affected real property, as lessor, or (2) evidence that the applicable lease with respect to such leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, or (3) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and otherwise in form satisfactory to the Administrative Agent; (6) without limiting clause (8) below, evidence of the insurance required by the terms of the Mortgages; (7) to the extent required by the Administrative Agent or any Lender, an appraisal of each of the owned properties described on Schedule 4.01(a)(iii)(C) complying with the requirements of the Federal Financial Institutions Reform, Recovery and Enforcement Act of 1989; (8) the following documents (collectively, the “Flood Documents”): (A) a completed standard “life of loan” flood hazard determination form (a “Flood Determination Form”), (B) if the improvement(s) to the applicable improved real property is located in a special flood hazard area, a notification to the Borrower (“Borrower Notice”) and (if applicable) notification to the Borrower that flood insurance coverage under the National Flood Insurance Program (“NFIP”) is not available because the community does not participate in the NFIP, (C) documentation evidencing the Borrower’s receipt of the Borrower Notice (e.g., countersigned Borrower Notice, return receipt of certified U.S. Mail, or overnight delivery), and (D) if the Borrower Notice is required to be given and flood insurance is available in the community in which the property is located, a copy of one of the following: the flood insurance policy, the borrower’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance satisfactory to the Administrative Agent (any of the foregoing being “Evidence of Flood Insurance”); and (9) such appraisals, legal opinions and other customary documents as the Administrative Agent may reasonably request with respect to such Mortgage or Mortgaged Property; and (D) any other documents and instruments as may be necessary or advisable in the opinion of the Administrative Agent to vest in the Administrative Agent valid and subsisting first priority perfected Liens on the properties purported to be subject to the Collateral Documents set forth on Schedule 4.01(a)(iii), enforceable against all third parties in accordance with their terms; provided that it is understood and agreed that the perfection of a security interest or a lien in the Collateral or any deliverable related to the perfection of security interests or liens in the Collateral (other than any Collateral the security interest in which may be perfected by the filing of a UCC financing statement, possession of the certificated securities (if any) evidencing the Guarantors’ equity and the security agreement giving rise to the security interest, the making of appropriate intellectual property filings or the execution and filing of certain mortgages and related documents with respect to the ▇▇▇▇▇▇▇ Facility (the “Required Closing Date Collateral”) shall not constitute a condition precedent to the closing of the Facilities, the Closing Date or the obligation of the L/C Issuer and each Lender to make the initial Credit Extensions to the extent that, after using its commercially reasonable efforts to do so, the Borrower is unable to perfect such security interest(s) or provide such deliverable prior to such date. (iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may 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) Fenwick & West LLP, counsel to the Loan Parties, and (B) local or other counsel in each jurisdiction in which any Loan Party may be organized or own any real property that is material in the judgment of the Administrative Agent, in each case as reasonably requested by the Administrative Agent, in the case of each of clauses (A) and (B), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender: (i) Duly executed counterparts of this Agreement. (ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a). (iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken. (iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document. (v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent~~) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof.~~; (vi) A a certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015. (vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder. (viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ~~▇▇▇▇~~ the Borrower and its ~~Restricted Subsidiaries,~~ Subsidiaries (taken as a whole) on ~~a consolidated basis (~~the Closing Date after giving effect to the ~~Transactions)~~Transaction, from ~~its~~ the Chief Financial Officer ~~or other financial officer.~~of the Borrower; (vii) a certificate attesting to the compliance with clauses (c), (d), (h), (i), (j) and (l) of this Section 4.01 on the Closing Date from a Responsible Officer of the Borrower; (viii) a Committed Loan Notice pursuant to Section 2.02; (ix) ~~Copies~~ copies of ~~(i) at least five (5) days prior~~ a recent Lien and judgment search in each jurisdiction reasonably requested by the Administrative Agent with respect to the ~~Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date~~Loan Parties; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016.and (x) ~~To the extent applicable,~~ a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date. (xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇fully executed and effective ▇▇▇▇▇▇ & Credit Facility substantially in the form of Exhibit H (as the same may be modified in accordance with the terms thereof and of the ▇▇▇▇▇~~▇▇▇~~▇ Master Assignment and Assumption, ~~LLP, counsel~~ but subject to the ~~Loan Parties~~limitations otherwise set forth herein). (b) All fees and expenses required to be paid hereunder and under the Fee Letters and invoiced on or before the Closing Date shall have been, or concurrently with the closing of the Transaction shall be, paid in ~~substantially~~ full in cash. (c) Prior to the ~~form of Exhibit D-1 hereto~~initial Credit Extension on the Closing Date, the Contribution and the Equity Distribution shall have been consummated, and ~~addressing such~~ the Acquisition shall be consummated simultaneously or substantially concurrently with the initial Credit Extension on the Closing Date in accordance with the Acquisition Agreement and the Separation Agreement, without giving effect to any waiver or other ~~matters as~~ modification thereof or consent thereunder that is materially adverse to the interests of the Lenders ~~may reasonably request~~ and is not approved by the Arrangers (~~including~~ it being understood and agreed that any change in the definition or calculation of the Recapitalization Amount (as defined in the Acquisition Agreement) shall be material and adverse to ~~Delaware corporate law matters~~the Lenders). Since April 5, 2011, neither the Borrower nor the Acquired Business shall have consummated or agreed to any material acquisition or disposition without the prior consent of the Arrangers. (d) The Refinancing shall have been consummated (or substantially simultaneously or concurrently with initial Credit Extensions on the Closing Date shall be consummated). After giving effect to consummation of the Transaction on the Closing Date, the Borrower and its Subsidiaries shall have outstanding no Indebtedness or preferred Equity Interests other than (Bi) the Loans and L/C Obligations, (ii) borrowings under the Senior Notes (if any) and/or the Bridge Facility (if any) in an aggregate principal amount not to exceed $300,000,000, the proceeds of which shall have been applied to consummate the Acquisition, (iii) borrowings under the ▇▇▇▇▇~~▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto~~ ▇ Credit Facility and ~~addressing such other matters as the Lenders may reasonably request~~(iv) Indebtedness permitted by Section 7.03(b). (~~xii~~e) Since December 31, 2015, there shall not have occurred a Material Adverse Effect. (A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the The Administrative Agent shall have received ~~evidence reasonably satisfactory to it of~~ the ~~repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt~~ Annual Financial Statements and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such DebtQuarterly Financial Statements. (~~xiv~~f) The ~~Lenders~~ Administrative Agent shall have ~~received,~~ received the Pro Forma Financial Statements. (g) The Administrative Agent shall have received on or prior to the Closing Date all documentation and other information reasonably requested in writing by them at least five ~~(5)~~ business days prior to the Closing ~~Date, all documentation~~ Date in order to allow the Administrative Agent and ~~other information required by bank regulatory authorities under~~ the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including ~~without limitation,~~ the ~~Patriot~~ Act. (xvh) ~~For~~ All approvals, consents, exemptions, authorizations, or other actions by, or notices to, or filings with, any Governmental Authority or any other Person necessary or required for the consummation of the Transaction have been received and all applicable waiting periods in connection with the Transaction (including under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended) have expired without any action having been taken by any Governmental Authority restraining, preventing or imposing materially adverse conditions upon the Transaction or the rights of the Loan Parties or their Subsidiaries or that could seek or threaten any of the foregoing, and no Law or regulation shall be applicable that has such effect. (i) The Administrative Agent shall have received evidence reasonably satisfactory to it that the Borrower and each ~~Material Real Property~~Loan Party has complied with the terms of the Fee Letters. (j) The representations and warranties of the Borrower and each other Loan Party contained in Sections 5.01, 5.02, 5.03, 5.04, 5.05(a) and (~~A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i~~b), 5.14, 5.16 (Bsolely as it relates to the Act), 5.19 and 5.20 and the representations made by or with respect to the Acquired Business in the Acquisition Agreement as are material to the interests of the Lenders (but only to the extent that the Borrower or its Affiliates has the right to terminate its obligations under the Acquisition Agreement as a result of a breach of such representations in the Acquisition Agreement) shall be true and correct. (k) The Administrative Agent shall have received updated Schedules 1.01B, 4.01(a)(iii), 4.01(a)(iii)(C), 5.08(b), 5.08(c), 5.08(d)(i), 5.08(d)(ii), 5.08(e), 5.13(a), 5.13(b) and 7.03 to this Agreement (if ~~such Material Real Property is a Special Flood Hazard Property, evidence~~ any) to replace the corresponding Schedules attached hereto as of the Effective Date in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, provided that the ~~Flood Insurance Requirements have been satisfied,~~ Lenders agree that such updated schedules shall be deemed to be satisfactory if such updated Schedules (i) do not differ from the corresponding Schedules attached hereto as of the Effective Date in a manner that is material and ~~(C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect~~ adverse to the ~~enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance~~ Lenders or (ii) are otherwise satisfactory to the ~~Administrative Agent~~ Required Lenders (and any references to any such Schedules in this Agreement shall thereafter refer to such Schedules as the same may have been updated pursuant to this Section 4.01(k)). (2l) ~~in states in which the Loan Parties party~~ There has been no change, occurrence or development (i) since December 31, 2010 that could reasonably be expected to ~~the applicable Mortgages are organized~~ have a Snacks Business MAE or ~~formed~~(ii) since January 31, ~~with respect~~ 2011 that could reasonably be expected to ~~the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent~~have an Acquiror MAE.

Appears in 1 contract

Sources: Credit Agreement (Diamond Foods Inc)

Conditions Precedent to the Closing Date. ~~This Agreement shall become effective on~~ The amendment and as restatement of the ~~first date~~ Original Credit Agreement on ~~which~~ the ~~following conditions precedent have been satisfied (~~Closing Date and the ~~obligation~~ obligations of each L/C Issuer and each Lender to make ~~an Advance or of~~ the ~~Issuing Bank to issue a Letter of~~ initial Credit Extensions on the ~~occasion of the Initial Extension of Credit hereunder is~~ Closing Date (if any) shall, in each case, be subject to the ~~satisfaction of such conditions precedent before or concurrently with the Closing Date):~~following conditions: (a) The Administrative ~~Agent shall have received on or before the Closing Date~~ Agent’s receipt of the following, each ~~dated such day~~ 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 each in form and substance reasonably satisfactory to the Administrative Agent: (i) a Note executed by the Borrower in favor of each Lender that has requested a Note at least two (2) Business Days prior to the Closing Date; (ii) executed copies of (x) this Agreement, and (y) each Collateral Document set forth on Schedule 4.01(a)(ii), executed by each Loan Party thereto, together with: (A) evidence that all filings under the UCC shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; and (B) any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent valid and subsisting first priority perfected Liens on the properties purported to be subject to the Collateral Documents set forth on Schedule 4.01(a)(ii), enforceable against all third parties in accordance with their terms; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; (iv) an opinion from (A) ▇▇▇▇▇ ▇▇▇▇ LLC, counsel to the Loan Parties, and (B) local or other counsel in each of the jurisdictions listed on Schedule 4.01(a)(iv), in each case as reasonably requested by the Administrative Agent, in the case of each of clauses (A) and (B), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender: (i) Duly executed counterparts of this Agreement. (ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a). (iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken. (iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.Administrative Agent; (v) ~~A copy~~ a certificate attesting to the Solvency of the ~~charter or other constitutive document of each Loan Party~~ Borrower and ~~each amendment thereto, certified~~ its Subsidiaries (taken as of a ~~date reasonably acceptable~~ whole) on the Closing Date after giving effect to the ~~Administrative Agent) by~~ Transactions, from the ~~Secretary of State~~ Chief Financial Officer of the ~~jurisdiction of its incorporation or organization~~Borrower, substantially in the form attached hereto as ~~the case may be, thereof as being a true and correct copy thereof.~~Exhibit K; (vi) A a certificate attesting to the compliance with clauses (d), (e) and (f) of ~~each Loan Party signed~~ this Section 4.01 on ~~behalf of such Loan Party by a Responsible Officer, dated~~ the Closing Date ~~(the statements made in which certificate shall be true on and as~~ from a Responsible Officer of the ~~Closing Date), certifying as to~~ Borrower; and (Avii) ~~the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of~~ if any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit Loans are to be made on the Closing ~~Date (including the migration of any Existing Letters of Credit) or the application of proceeds~~Date, ~~if any, therefrom, that would constitute~~ a ~~Default; and (F) the absence of a Material Adverse Effect since December 31, 2015~~Committed Loan Notice pursuant to Section 2.02. (~~vii~~b) ~~A certificate~~ All reasonable fees and out-of-pocket expenses due and payable to the Lenders, the Arrangers and the Administrative Agent and required to be paid on or prior to the Closing Date pursuant to the Engagement Letter and Fee Letters shall have been paid or shall have been authorized to be deducted from the proceeds of the ~~Secretary~~ initial funding under the Facilities, so long as any such fees or ~~an Assistant Secretary of each Loan Party certifying~~ expenses not expressly set forth in the ~~names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder.~~ Fee Letters have been have been invoiced not less than three (~~viii~~3) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer. (ix) Copies of (i) at least five (5) business days prior to the Closing Date~~, audited financial statements of ▇▇▇▇~~ . (c) The Administrative Agent and ~~its Subsidiaries for each of~~ the Lenders shall have received at least three ~~most recently-ended Fiscal Years ending more than 90 days~~ Business Days prior to the Closing Date~~; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions~~, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016. (x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date. (xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request. (xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect. (A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees requested in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt. (xiv) The Lenders shall have received, writing at least ~~five (5) days~~ seven Business Days prior to the Closing Date, all documentation and other information ~~required by bank regulatory authorities under~~ that the Administrative Agent and the Lenders reasonably determine is necessary in order to allow the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including ~~without limitation,~~ the ~~Patriot Act~~Act and the Beneficial Ownership Regulation. (xvd) ~~For~~ The representations and warranties of the Borrower and each other Loan Party contained in Article 5 hereof shall be true and correct in all material respects; provided that any representation and warranty that is qualified as to “materiality,” “Material ~~Real Property~~Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects. (e) There has been no change, occurrence or development since September 30, 2019 that could reasonably be expected to have a Material Adverse Effect. (Af) At the time of and immediately after giving effect to the Transactions, no Default shall have occurred and be continuing. (g) The Administrative Agent shall have received a ~~Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property,~~ certificate from the Borrower’s insurance broker or other evidence reasonably satisfactory to it that all insurance required to be maintained pursuant to Section 6.06 is in full force and effect, together with endorsements naming the Administrative ~~Agent that the Flood Insurance Requirements have been satisfied~~Agent, ~~and (C) favorable opinions of local counsel~~ for the ~~Loan Parties~~ benefit of the Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 6.06. (1h) Substantially concurrently with the consummation of the Transactions, each Mortgage (as defined in ~~states in which~~ the ~~Material Real Property is located,~~ Original Credit Agreement) with respect to ~~the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and~~ a Mortgaged Property (~~2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties~~ as defined in the ~~granting~~ Original Credit Agreement) shall be released, and terminated of ~~such Mortgages, in form and substance satisfactory to the Administrative Agent~~record.

Appears in 1 contract

Sources: Credit Agreement (Post Holdings, Inc.)

Conditions Precedent to the Closing Date. ~~This~~ The effectiveness of this Agreement ~~shall become effective on~~ and as obligations of ~~the first date on which the following conditions precedent have been satisfied (~~each L/C Issuer and ~~the obligation of~~ each Lender to make ~~an Advance or of~~ the ~~Issuing Bank to issue a Letter of~~ initial Credit Extensions on the ~~occasion of the Initial Extension of Credit hereunder is~~ Closing Date shall, in each case, be subject to the ~~satisfaction of such conditions precedent before or concurrently with the Closing Date):~~following conditions: (a) The Administrative ~~Agent shall have received on or before the Closing Date~~ Agent’s receipt of the following, each ~~dated such day~~ 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 each in form and substance reasonably satisfactory to the Administrative Agent: (i) a Note executed by the Borrower in favor of each Lender that has requested a Note at least two (2) Business Days prior to the Closing Date; (ii) executed copies of (x) this Agreement, and (y) each Collateral Document set forth on Schedule 4.01(a)(ii), executed by each Loan Party thereto, together with: (A) evidence that all filings under the UCC shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; and (B) any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent valid and subsisting first priority perfected Liens on the properties purported to be subject to the Collateral Documents set forth on Schedule 4.01(a)(ii), enforceable against all third parties in accordance with their terms; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party; (iv) an opinion from (A) ▇▇▇▇▇ ▇▇▇▇ LLC, counsel to the Loan Parties, and (B) local or other counsel in each of the jurisdictions listed on Schedule 4.01(a)(iv), in each case as reasonably requested by the Administrative Agent, in the case of each of clauses (A) and (B), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender: (i) Duly executed counterparts of this Agreement. (ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a). (iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken. (iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document.Administrative Agent; (v) ~~A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of~~ a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof. (vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015. (vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder. (viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ~~▇▇▇▇~~ the Borrower and its ~~Restricted Subsidiaries,~~ Subsidiaries (taken as a whole) on ~~a consolidated basis (~~the Closing Date after giving effect to the Transactions), from ~~its~~ the Chief Financial Officer ~~or other financial officer~~of the Borrower, substantially in the form attached hereto as Exhibit B; (vi) a certificate attesting to the compliance with clauses (c), (d), (f) (g) and (h) of this Section 4.01 on the Closing Date from a Responsible Officer of the Borrower; (vii) a Committed Loan Notice pursuant to Section 2.02; and (viii) copies of a recent Lien search in each jurisdiction reasonably requested by the Administrative Agent with respect to the Loan Parties. (ixb) ~~Copies~~ All fees and expenses due and payable to the Lenders, the Arrangers and the Administrative Agent and required to be paid on or prior to the Closing Date pursuant to the Engagement Letter and Fee Letters shall have been paid or shall have been authorized to be deducted from the proceeds of the initial funding under the Facilities, so long as any such fees or expenses not expressly set forth in the Fee Letters have been have been invoiced not less than three (i3) ~~at least five (5)~~ business days prior to the Closing Date. (c) Substantially concurrently with the initial funding of the Term B Facility, ~~audited financial statements~~ all existing third party debt for borrowed money of ~~▇▇▇▇~~ the Borrower and its Restricted Subsidiaries under the Bridge Facility Agreement shall be repaid, all commitments thereunder and all liens and security interests granted in connection therewith shall be terminated and after giving effect to the consummation of the Transactions on the Closing Date, the Borrower and its Subsidiaries ~~for each~~ shall have outstanding (i) no Indebtedness other than Indebtedness permitted by Section 7.03 and (ii) no Disqualified Equity Interests (the “Refinancing”). (d) The Active Nutrition Transaction shall have been, or shall be, substantially concurrently with the initial funding of the Term B Facility, consummated substantially in accordance with the Registration Statement. (e) The Administrative Agent shall have received at least three ~~most recently-ended Fiscal Years ending more than 90 days~~ Business Days prior to the Closing Date~~; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions~~, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016. (x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date. (xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request. (xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect. (A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees requested in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt. (xiv) The Lenders shall have received, writing at least ~~five (5) days~~ seven Business Days prior to the Closing Date, all documentation and other information ~~required by bank regulatory authorities under~~ that the Administrative Agent, on behalf of itself or any other Lender, reasonably determines is necessary in order to allow the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including ~~without limitation,~~ the ~~Patriot Act~~Act and the Beneficial Ownership Regulation. (xvf) ~~For~~ The representations and warranties of the Borrower and each other Loan Party contained in Article 5 hereof shall be true and correct in all material respects; provided that any representation and warranty that is qualified as to “materiality,” “Material ~~Real Property~~Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects. (g) There has been no change, occurrence or development since September 30, 2018 that could reasonably be expected to have a Material Adverse Effect. (Ah) At the time of and immediately after giving effect to the Transactions, no Default shall have occurred and be continuing. (i) The Administrative Agent shall have received a ~~Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property,~~ certificate from the Borrower’s insurance broker or other evidence reasonably satisfactory to it that all insurance required to be maintained pursuant to Section 6.06 is in full force and effect, together with endorsements naming the Administrative Agent, for the benefit of the Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 6.06. (j) The Administrative Agent ~~that~~ shall have received (i) the ~~Flood Insurance Requirements have been satisfied~~pro forma unaudited consolidated balance sheet of BRBR and its Subsidiaries as of June 30, 2019, (ii) the pro forma unaudited consolidated statement of operations of BRBR and its Subsidiaries as of and for the twelve-month period ending on September 30, 2018, and (Ciii) ~~favorable opinions~~ the pro forma unaudited consolidated statement of ~~local counsel~~ operations of BRBR and its Subsidiaries as of and for the ~~Loan Parties (1) in states in which the Material Real Property is located~~nine-month period ending on June 30, ~~with respect~~ 2019, prepared after giving effect to the ~~enforceability and perfection~~ Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statements of operations) (collectively, the “Pro Forma Financial Statements”), it being understood that the Pro Forma Financial Statements need not be prepared in compliance with Regulation S-X of the ~~applicable Mortgages and any related fixture filings~~ Securities Act of 1933, as amended, or include adjustments for purchase accounting (including adjustments of the type contemplated by Financial Accounting Standards Board Accounting Standards Codification 805, Business Combinations (formerly SFAS 141R)). (k) The Administrative Agent shall have received (x) the Closing Annual Financial Statements; provided the foregoing financial statements are accompanied by consolidating information that explains in ~~form and substance satisfactory~~ reasonable detail the differences between the information relating to the ~~Administrative Agent~~ Active Nutrition Business, on the one hand, and the information relating to the Borrower and its Restricted Subsidiaries on a standalone basis, on the other hand and (2y) ~~in states in which~~ the ~~Loan Parties party to~~ Quarterly Financial Statements for each subsequent fiscal quarter (other than the ~~applicable Mortgages are organized or formed, with respect to~~ fourth fiscal quarter) ended at least 45 days before the ~~valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent~~Closing Date.

Appears in 1 contract

Sources: Credit Agreement (Bellring Brands, Inc.)

Conditions Precedent to the Closing Date. This Agreement shall become effective on and as of the first date (the “Closing Date”) on which the following conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date): (a) The Administrative Agent shall have received on or before the Closing Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender: (i) Duly executed counterparts of this Agreement. (ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a). (iii) ~~The~~ A certificate of each Loan Party signed on behalf of such Loan Party, the Administrative Agent and the Collateral Agent, dated the Closing Date, amending certain provisions of the Security ~~Agreement~~Agreement and certifying that the Collateral Documents to which such Loan Party is a party and all the Collateral described therein do, and shall continue to secure, payment of all of the Secured Obligations (in each case, as defined in the applicable Collateral Document) (the “Amendment No. 2 to Revolving Facility Security Agreement and Collateral Document Confirmation”), together with evidence that all other ~~actions~~ action that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken. (iv) Certified copies of the resolutions of the boards of directors of each of ~~▇▇▇▇~~ the Borrower and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document. (v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof. (vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, ~~2015~~2009. (vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder. (viii) Certificates, in substantially the form of Exhibit I L attesting to the Solvency of ~~▇▇▇▇~~ the Borrower and ~~its Restricted Subsidiaries~~each Guarantor, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer. (ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ~~▇▇▇▇~~ the Borrower and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ~~▇▇▇▇~~ the Borrower and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ~~▇▇▇▇~~ the Borrower dated ~~May 5~~February 2, ~~2016~~2011. (x) [RESERVED.] (xi) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date. (xixii) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request. (~~xii~~xiii) With respect to any Flood Hazard Property, (i) the applicable Loan Party's written acknowledgment of receipt of written notification as to the fact that a Mortgaged Property is a Flood Hazard Property and as to whether the community in which each such Flood Hazard Property is located is participating in the National Flood Insurance Program and (ii) copies of the Borrower’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance reasonably satisfactory to the Administrative Agent and naming the Collateral Agent as sole loss payee on behalf of the Lenders. (xiv) [RESERVED.] (xv) [RESERVED.] (xvi) Since December 31, ~~2015~~2009, there shall not have occurred a Material Adverse Effect. (Axvii) [RESERVED.] (xviii) All costs, fees and expenses (including, without limitation, legal fees and ~~expenses~~ expenses, title premiums, survey charges and recording taxes and fees for which ~~▇▇▇▇~~ the Borrower has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Commitment Letter, the Administrative Agent Fee Letter and the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debtpayable. (~~xiv~~xix) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act. (xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent.

Appears in 1 contract

Sources: Revolving Credit and Guaranty Agreement (Dana Holding Corp)

Conditions Precedent to the Closing Date. This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (and the obligation of each Lender to make an Advance or of the Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder is subject to the satisfaction of such conditions precedent before or concurrently with the Closing Date): (a) The Administrative Agent shall have received on or before the Closing Date the following, each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender: (i) ~~Duly~~ ▇▇▇▇ executed counterparts of this Agreement. (ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a). (iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken. (iv) Certified copies of the resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document. (v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof. (vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015. (vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder. (viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer. (ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016. (x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date. (xi) A favorable opinion of (A) ▇▇▇▇, ~~Weiss~~▇▇▇▇▇, ~~Rifkind~~▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request. (xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect. (A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt. (xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act. (xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent.

Appears in 1 contract

Sources: Credit and Guaranty Agreement (Dana Inc)

Conditions Precedent to the Closing Date. ~~This Agreement shall become effective on~~ The amendment and as restatement of the ~~first date~~ Original Credit Agreement on ~~which~~ the ~~following conditions precedent have been satisfied (~~Closing Date and the ~~obligation~~ obligations of each L/C Issuer and each Lender to make ~~an Advance or of~~ the ~~Issuing Bank to issue a Letter of~~ initial Credit Extensions on the ~~occasion of the Initial Extension of Credit hereunder is~~ Closing Date (if any) shall, in each case, be subject to the ~~satisfaction of such conditions precedent before or concurrently with the Closing Date):~~following conditions: (a) The Administrative ~~Agent shall have received on or before the Closing Date~~ Agent’s receipt of the following, each ~~dated such day~~ 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 each in form and substance reasonably satisfactory to the ~~Lenders (unless otherwise specified)~~ Administrative Agent and ~~(except for the Notes) in sufficient copies for each Lender~~its legal counsel: (i) ~~Duly~~ a Note executed ~~counterparts~~ by the Borrower in favor of ~~this Agreement.~~each Lender that has requested a Note at least two (2) Business Days prior to the Closing Date; (ii) ~~The Notes payable~~ each Collateral Document set forth on Schedule 4.01(a)(ii), executed by each Loan Party thereto, together with: (A) evidence that all filings under the UCC shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the ~~order~~ Administrative Agent; and (B) any other documents and instruments as may be necessary or advisable in the reasonable opinion of the ~~Lenders~~ Administrative Agent to vest in the Administrative Agent valid and subsisting first priority perfected Liens on the properties purported to be subject to the ~~extent requested~~ Collateral Documents set forth on Schedule 4.01(a)(ii), enforceable against all third parties in accordance with ~~Section 2.16(a).~~their terms; (iii) The Security Agreement, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken. (iv) Certified copies such certificates of ~~the~~ resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document. (v) A copy of the charter or other ~~constitutive document~~ action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party ~~and each amendment thereto, certified (~~as ~~of a date reasonably acceptable to~~ the Administrative ~~Agent) by~~ Agent may reasonably require evidencing the ~~Secretary of State of the jurisdiction of its incorporation or organization~~identity, ~~as the case may be, thereof as being a true~~ authority and ~~correct copy thereof. (vi) A certificate~~ capacity of each ~~Loan Party signed on behalf of such Loan Party by~~ Responsible Officer thereof authorized to act as a Responsible ~~Officer, dated the Closing Date (the statements made~~ Officer in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015. (vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign connection with this Agreement and the other ~~documents~~ Loan Documents to be delivered hereunder. (viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇ and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer. (ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016. (x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date. (xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the which such Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request. (xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect. (A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt. (xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act. (xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property Party is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent.party;

Appears in 1 contract

Sources: Credit Agreement (Post Holdings, Inc.)

Appears in 1 contract

Sources: Credit Agreement (Healthequity, Inc.)

Conditions Precedent to the Closing Date. ~~This~~ The effectiveness of this Agreement ~~shall become effective on and as of the first date on which the following conditions precedent have been satisfied (~~and the ~~obligation~~ agreement of each Lender to make ~~an Advance or of~~ the ~~Issuing Bank~~ Loans requested to ~~issue a Letter of Credit~~ be made by it under this Agreement on the ~~occasion of the Initial Extension of Credit hereunder~~ Closing Date is subject to the ~~satisfaction of such conditions precedent before~~ satisfaction, or waiver in accordance with Section 10.01, prior to or concurrently with the making of such Loans on the Closing Date):, of the following conditions precedent: (a) The Administrative ~~Agent shall have received on or before the Closing Date~~ Agent’s receipt of the following, each ~~dated such day~~ of which shall be originals or telecopies or .pdf format files (followed promptly by originals) unless otherwise specified), each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and the Lenders: (i) executed counterparts of this Agreement, duly executed by each Loan Party; (ii) executed counterparts of the Guaranty, duly executed by each Guarantor; (iii) executed counterparts of an amendment to the First Lien Credit Agreement, duly executed by each Loan Party party thereto, sufficient lenders under the First Lien Credit Agreement to give effect to such amendment and the First Lien Agent, providing for, among other things, the permitted incurrence of the Loans hereunder on the terms described herein and the granting of the Liens to secure the Obligations on the terms described in the Security Documents and the Intercreditor Agreement, which amendment shall be in full force and effect and in form and substance reasonably satisfactory to the Administrative Agent; (iv) executed counterparts of the Intercreditor Agreement, duly executed by each Loan Party and the First Lien Agent; (b) The Administrative Agent's receipt of the following, each of which shall be originals or telecopies or .pdf format files (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent: (i) executed counterparts of the Pledge and Security Agreement duly executed by each Loan Party, together with: (A) evidence that the First Lien Agent, as bailee for the Secured Parties, shall have “control” (for purposes of the UCC) in (i) certificates representing the Pledged Equity Interests referred to therein, accompanied by undated stock powers executed in blank in the case of certificated Pledged Equity Interests and (ii) any other possessory collateral pursuant to the Pledge and Security Agreement such that the Secured Parties shall have a perfected Second Priority Lien therein, (B) a Perfection Certificate duly executed by Responsible Officers of each Loan Party dated the Closing Date and the results of a recent lien search in each of the jurisdictions where the Loan Parties are organized or where assets of the Loan Parties are located, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted by Section 7.01 or discharged on or prior to the Closing Date pursuant to documentation reasonably satisfactory to the Administrative Agent, (C) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge and Security Agreement, covering the Collateral described in the Pledge and Security Agreement, (D) evidence of the completion of all actions required pursuant to the Pledge and Security Agreement with respect to the attachment, perfection, and protection of priority of security interests in the Collateral, including without limitation any actions required with respect to IP Rights, securities, instruments, deposit accounts (subject to Section 6.17(b) of this Agreement) and securities accounts, and including all other actions, recordings and filings of or with respect to the Collateral or the Pledge and Security Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby, and (E) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge and Security Agreement has been taken; (ii) subject to Section 6.17, with respect to each of the Mortgaged Properties: (A) executed counterparts of the Mortgage on such parcel of Mortgaged Property, and evidence that a counterpart of the Mortgage has been either recorded or registered in all places to the extent necessary or, in the reasonable opinion of the Administrative Agent, desirable to effectively create a legal, valid and enforceable Second Priority perfected mortgage, charge, hypothec, deed of trust or deed to secure debt lien on each Mortgaged Property in favor of the Administrative Agent for the benefit of the Secured Parties, securing the Obligations (and with respect to Mortgaged Properties leased by the Borrower, or the applicable Loan Party, as tenant, together with landlord consents, if required pursuant to the lease relating to such leased Mortgaged Property and assurances, in form and substance reasonably satisfactory to the ~~Lenders~~ Administrative Agent); (~~unless otherwise specified~~B) ~~and (except~~ if requested by the Administrative Agent, proper fixture filings under the UCC or notices of security interest under the UCC for filing under the UCC in the appropriate jurisdiction in which the parcel of Mortgaged Property is located, necessary or desirable to perfect the security interests in fixtures purported to be created by the Mortgage in favor of the Administrative Agent for the ~~Notes) in sufficient copies for each Lender:~~benefit of the Secured Parties; (iC) ~~Duly executed counterparts~~ an opinion of ~~this Agreement.~~counsel in the state in which such parcel of Mortgaged Property is located and an opinion of counsel in the jurisdiction of formation of the Loan Party entering into the relevant Mortgage, in each case, in form and substance and from counsel reasonably satisfactory to the Administrative Agent; (iiD) ~~The Notes payable~~ a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to Mortgaged Properties located in the ~~order~~ United States or equivalent determination in any other jurisdiction with respect to each parcel of Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance, duly executed by the ~~Lenders~~ Borrower or the applicable Loan Party, and evidence of flood insurance, in the event any such parcel of Mortgaged Property is located in a special flood hazard area); (E) Surveys with respect to each Mortgaged Property; and (F) such other information, documentation, and certifications as may be reasonably required by the ~~extent requested in accordance with Section 2.16(a).~~Administrative Agent; (iii) ~~The Security Agreement, together with evidence that all other actions that~~ Notes executed by the ~~Collateral Agent may reasonably deem necessary or desirable~~ Borrower in ~~order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken.~~favor of each Lender requesting Notes; (iv) ~~Certified copies~~ such certificates of ~~the~~ resolutions of the boards of directors of each of ▇▇▇▇ and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document. (v) A copy of the charter or other ~~constitutive document~~ action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party ~~and each amendment thereto, certified (~~as ~~of a date reasonably acceptable to~~ the Administrative ~~Agent) by~~ Agent may require evidencing the ~~Secretary of State of the jurisdiction of its incorporation or organization~~identity, ~~as the case may be, thereof as being a true~~ authority and ~~correct copy thereof. (vi) A certificate~~ capacity of each ~~Loan Party signed on behalf of such Loan Party by~~ Responsible Officer thereof authorized to act as a Responsible ~~Officer, dated the Closing Date (the statements made~~ Officer in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015. (vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign connection with this Agreement and the other ~~documents~~ Loan Documents to ~~be delivered hereunder.~~which such Loan Party is a party; (~~viii~~v) ~~Certificates~~such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, is validly existing, in ~~substantially the form~~ good standing and qualified to engage in business in its jurisdiction of ~~Exhibit I attesting to the Solvency of ▇▇▇▇~~ formation and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer. (ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016. (x) To in the ~~extent applicable~~case of the Borrower, also in California, New York, Oregon, Missouri, New Hampshire and Washington, (y) in the case of MEMC Pasadena, Inc., a ~~Notice~~ Guarantor, also in Louisiana, and (z) in the case of ~~Borrowing for any Borrowing to be made~~the Sun Edison, ~~and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued~~a Guarantor, ~~on the Closing Date.~~also in California, Oregon, Massachusetts, Colorado, Maryland, Texas and New Jersey; (xivi) A a favorable opinion of ~~(A) ▇▇▇▇, Weiss, Rifkind, ▇▇~~▇▇▇▇▇ & ▇▇▇~~▇▇▇▇▇,~~ ▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, substantially in ~~substantially~~ the form of Exhibit ~~D-1~~ G hereto; (vii) a certificate of a Responsible Officer of the Borrower: (A) either (x) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by each Loan Party and the validity against each Loan Party of the Loan Documents to which it is a party, and ~~addressing~~ such ~~other matters as the Lenders may reasonably request~~ consents, licenses and approvals shall be in full force and effect, or (~~including as to Delaware corporate law matters)~~y) stating that no such consents, ~~and~~ licenses or approvals are so required; (B) ~~▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to~~ certifying that the ~~Loan Parties,~~ conditions specified in ~~substantially the form of Exhibit D-2 hereto~~ Sections 4.01(f) and ~~addressing such other matters as the Lenders may reasonably request.~~(g) have been satisfied; and (~~xii~~C) ~~Since December 31~~certifying that (x) there has been no event or circumstance since the date of the Audited Financial Statements that has had or would be reasonably expected to have, ~~2015~~either individually or in the aggregate, ~~there shall not have occurred~~ a Material Adverse Effect., and (y) there is no claim or proceeding initiated that purports or seeks to adversely affect this Agreement, any other Loan Document or any other material aspect of the transactions contemplated hereby; (Aviii) ~~All costs, fees and expenses~~ a duly executed solvency certificate of the Chief Financial Officer (~~including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior~~ or another financial officer satisfactory to the ~~Closing Date~~Administrative Agent) of the Borrower in form and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence substance reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent ~~copies~~ and each of ~~all documents~~ the Lenders and confirming the representation and warranty set forth in Section 5.19; (ix) certificates of insurance and/or other evidence, in each case in form and substance reasonably satisfactory to the Administrative Agent, demonstrating compliance with the insurance requirements of this Agreement; (x) such other assurances, certificates, documents, consents or ~~instruments evidencing~~ opinions as the Administrative Agent or ~~necessary~~ the Required Lenders reasonably may require; (c) Any fees required to ~~release all Liens~~ be paid on or before the ~~Collateral securing such Debt~~Closing Date shall have been paid, including without limitation, the Closing Fee and the other fees payable pursuant to Section 2.09. (~~xiv~~d) The ~~Lenders~~ Borrower shall have ~~received~~paid all fees, at charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent), including without limitation, title premiums, survey charges and recording taxes or fees. (e) At least ~~five (5)~~ 10 days prior to the Closing ~~Date~~Date (or such shorter period agreed to by the Lenders), the Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “~~know your~~ know-your-customer” and anti-money laundering rules and regulations, including ~~without limitation~~the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) the ~~Patriot~~ “PATRIOT Act”). (xvf) ~~For~~ The representations and warranties of (i) the Borrower contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, with respect to any representation or warranty that is itself modified or qualified by materiality or a “Material ~~Real Property~~Adverse Effect” standard, such representation or warranty shall be true and correct in all respects) on and as of the Closing Date. (Ag) No Default or Event of Default shall exist, or would result from the Closing Date proposed Borrowing or the application of the proceeds thereof. No default or event of default under the First Lien Credit Agreement shall exist, or would result from the Closing Date proposed Borrowing or the application of the proceeds thereof. (h) The Administrative Agent shall have received a ~~Mortgage and Mortgage Policy delivered~~ Borrowing Notice in accordance with Section ~~5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory~~ 2.02. The delivery of the Borrowing Notice by the Borrower to the ~~Administrative Agent~~ Lender on or prior to the Closing Date shall be deemed to be a representation and warranty that the ~~Flood Insurance Requirements~~ conditions specified in Sections 4.01(f) and (g) have been ~~satisfied,~~ satisfied (or waived in accordance with Section 10.01) on and ~~(C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection~~ as of the ~~applicable Mortgages and any related fixture filings in form and substance satisfactory~~ Closing Date. (i) Each Lender shall have funded its Commitment under this Agreement on the terms contained herein or otherwise on terms mutually agreed to by the Administrative Agent and ~~(2)~~ such other Lenders. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in ~~states in which~~ this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the ~~Loan Parties party~~ Administrative Agent shall have received notice from such Lender prior to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agentproposed Closing Date specifying its objection thereto.

Appears in 1 contract

Sources: Second Lien Credit Agreement (Memc Electronic Materials Inc)

Conditions Precedent to the Closing Date. ~~This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (and the~~ The obligation of each Lender to make ~~an Advance or~~ its initial extension of credit hereunder and the occurrence of the ~~Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder~~ Closing Date is subject to the fulfillment (or waiver), to the reasonable satisfaction of ~~such conditions precedent before or concurrently with~~ the ~~Closing Date):~~Agent and each Lender, of each of the following conditions: (a) The ~~Administrative~~ Agent shall have received (i) this Agreement, (ii) the Pledge and Security Agreement pursuant to which a Lien is granted on the Collateral in favor of the Agent, for the ratable benefit of the Lenders, and pursuant to which the Agent is authorized to file customary “all assets” UCC-1 financing statements; (iii) the Commitment Letter; (iv) each other Loan Document, each duly executed and delivered by each party hereto or ~~before~~ thereto; (b) The Agent shall have received the written opinions, dated the Closing Date, of counsel to the Loan Parties, with respect to this Agreement and the other Loan Documents; (c) The Agent shall have received a certificate of status with respect to each Loan Party dated within 30 days of the date of effectiveness of this Agreement, or confirmed by facsimile, if facsimile confirmation is available, each such certificate to be issued by the applicable Governmental Authority, and which certificates shall indicate that the applicable Loan Party is in good standing in such jurisdiction; (d) The Agent shall have received a copy of each Loan Party’s Governing Documents, certified by a Responsible Officer with respect to the Borrower; (e) The Agent shall have received a copy of the resolutions or the unanimous written consents with respect to each Loan Party, certified as of the Closing Date by a Responsible Officer, authorizing (A) the ~~following~~transactions contemplated by the Loan Documents to which such Loan Party is or will be a party, ~~each dated such day (unless otherwise specified), in form and substance reasonably satisfactory to the Lenders (unless otherwise specified)~~ and (~~except for~~ B) the Notes) in sufficient copies for each Lender: (i) Duly executed counterparts of this Agreement. (ii) The Notes payable to the order of the Lenders to the extent requested in accordance with Section 2.16(a). (iii) The Security Agreementexecution, ~~together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect~~ delivery and ~~protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken. (iv) Certified copies of the resolutions of the boards of directors~~ performance by such Loan Party of each ~~of ▇▇▇▇~~ Loan Document to which it is or will be a party and ~~each Guarantor approving~~ the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document. (v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date reasonably acceptable to the Administrative Agent) by the Secretary of State of the jurisdiction of its incorporation or organization, as the case may be, thereof as being a true and correct copy thereof. (vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015. (vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered ~~hereunder. (viii) Certificates,~~ by it in ~~substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇~~ connection herewith and its Restricted Subsidiaries, on a consolidated basis (after giving effect to the Transactions), from its Chief Financial Officer or other financial officer. (ix) Copies of (i) at least five (5) days prior to the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016. (x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date. (xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, counsel to the Loan Parties, in substantially the form of Exhibit D-1 hereto, and addressing such other matters as the Lenders may reasonably request (including as to Delaware corporate law matters), and (B) ▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP, Michigan counsel to the Loan Parties, in substantially the form of Exhibit D-2 hereto and addressing such other matters as the Lenders may reasonably request. (xii) Since December 31, 2015, there shall not have occurred a Material Adverse Effect. (A) All costs, fees and expenses (including, without limitation, legal fees and expenses for which ▇▇▇▇ has received an invoice at least one (1) day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties shall have been paid in full in cash to the extent due and payable and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt. (xiv) The Lenders shall have received, at least five (5) days prior to the Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act. (xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent.therewith;

Appears in 1 contract

Sources: Increase Joinder and First Amendment (P10, Inc.)

Conditions Precedent to the Closing Date. ~~This Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied (and the~~ The obligation of each Lender to make ~~an Advance or~~ Loans hereunder shall become effective on the date (the “Closing Date”) on which each of the ~~Issuing Bank to issue a Letter of Credit on the occasion of the Initial Extension of Credit hereunder~~ following conditions is ~~subject to the satisfaction of such conditions precedent before~~ satisfied (or ~~concurrently~~ waived in accordance with ~~the Closing Date~~Section 10.5): (a) ~~The~~ On the Closing Date, (i) the Credit Parties, the Administrative Agent and each Lender shall have signed a counterpart of this Agreement and shall have delivered (or transmitted electronically) the same to the Administrative Agent; and (ii) there shall have been delivered to the Administrative Agent for the account of the Swingline Lender and each Lender that has requested the same a Swingline Note and/or Revolving Note, as applicable, executed by each Borrower, in each case in the amount, maturity and as otherwise provided herein; (b) On the Closing Date, the Administrative Agent shall have received ~~on or before the Closing Date the following, each dated such day~~ (~~unless otherwise specified)~~i) an opinion, in form and substance reasonably satisfactory to the ~~Lenders (unless otherwise specified) and (except for the Notes) in sufficient copies for each Lender: (i) Duly executed counterparts of this Agreement. (ii) The Notes payable~~ Administrative Agent, addressed to the ~~order~~ Administrative Agent and each of the Lenders to and dated the ~~extent requested in accordance with Section 2.16(a). (iii) The Security Agreement~~Closing Date, together with evidence that all other actions that the Collateral Agent may reasonably deem necessary or desirable in order to perfect and protect the liens and security interests created under the Collateral Documents and the required priority thereof has been taken. (iv) Certified copies of the resolutions of the boards of directors of each of from ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇ LLP, special New York counsel to the Credit Parties, (ii) an opinion, in form and each Guarantor approving the execution and delivery of this Agreement and each other Loan Document to which it is, or is intended to be a party, and of all documents evidencing other necessary constitutive action and, if any, material governmental and other third party approvals and consents, if any, with respect to this Agreement, the other Transactions and each other Loan Document. (v) A copy of the charter or other constitutive document of each Loan Party and each amendment thereto, certified (as of a date substance reasonably ~~acceptable~~ satisfactory to the Administrative Agent~~) by~~ , addressed to the ~~Secretary of State~~ Administrative Agent and each of the ~~jurisdiction of its incorporation or organization, as the case may be, thereof as being a true~~ Lenders and ~~correct copy thereof. (vi) A certificate of each Loan Party signed on behalf of such Loan Party by a Responsible Officer,~~ dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the accuracy and completeness of the charter (or other applicable formation document) of such Loan Party and the absence of any changes thereto; (B) the accuracy and completeness of the bylaws (or other applicable organizational document) of such Loan Party as in effect on the date on which the resolutions of the board of directors (or persons performing similar functions) of such Person referred to in Section 3.01(a)(iv) were adopted and the absence of any changes thereto (a copy of which shall be attached to such certificate); (C) the absence of any proceeding known to be pending for the dissolution, liquidation or other termination of the existence of such Loan Party; (D) the accuracy in all material respects of the representations and warranties made by such Loan Party in the Loan Documents to which it is or is to be a party as though made on and as of the Closing Date, before and after giving effect to all of the Borrowings and the issuance of all of the Letters of Credit to be made on such date (including the migration of any Existing Letters of Credit) and to the application of proceeds, if any, therefrom; (E) the absence of any event occurring and continuing, or resulting from any of the Borrowings or the issuance of any of the Letters of Credit to be made on the Closing Date (including the migration of any Existing Letters of Credit) or the application of proceeds, if any, therefrom, that would constitute a Default; and (F) the absence of a Material Adverse Effect since December 31, 2015. (vii) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Agreement and the other documents to be delivered hereunder. (viii) Certificates, in substantially the form of Exhibit I attesting to the Solvency of ▇▇▇▇▇▇▇ ~~and its Restricted Subsidiaries~~▇▇▇▇ & ▇▇▇▇▇▇▇ Limited, ~~on a consolidated basis (after giving effect~~ special Bermuda counsel to the ~~Transactions)~~Credit Parties, ~~from its Chief Financial Officer or other financial officer.~~ and (ixiii) ~~Copies of (i) at least five (5) days~~ an opinion, substantially in the form distributed to and agreed with the Administrative Agent prior to signing of this Agreement, addressed to the Administrative Agent and each of the Lenders and dated the Closing Date, audited financial statements of ▇▇▇▇ and its Subsidiaries for each of the three most recently-ended Fiscal Years ending more than 90 days prior to the Closing Date; and (ii) customary unaudited pro forma financial statements as to ▇▇▇▇ and its Subsidiaries giving effect to the Transactions, in each case prepared in a manner consistent with the projections in the presentation provided by ▇▇▇▇ dated May 5, 2016. (x) To the extent applicable, a Notice of Borrowing for any Borrowing to be made, and/or one or more Letter of Credit Applications for each Letter of Credit (other than any Existing Letter of Credit) to be issued, on the Closing Date. (xi) A favorable opinion of (A) ▇▇▇▇, Weiss, Rifkind, ▇▇from ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ~~LLP,~~ special Swiss counsel to the ~~Loan~~ Credit Parties, in ~~substantially~~ respect of the capacity of Swiss Holdings to enter into this Agreement; (c) On the Closing Date, the Administrative Agent shall have received a certificate, signed by a Responsible Officer of each Credit Party, in form and substance reasonably satisfactory to the Administrative Agent, certifying that (i) each of ~~Exhibit D-1 hereto~~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 representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty is true and correct (if qualified as to materiality) or true and correct in all 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 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 facility provided for herein, (iii) no Default or Event of Default exists as of the Closing Date and (iv) there has not occurred or become known to the Administrative Agent since December 31, 2015, 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 Credit Party, in form and substance reasonably satisfactory to the Administrative Agent, certifying (i) that attached thereto is (A) with respect to each Credit Party other than Swiss Holdings, 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 Credit Party or (B) with respect to Swiss Holdings, an excerpt from the Commercial Register of the Canton of Zug, in each case, certified as of a recent date by the Secretary of State (or comparable Governmental Authority, if available,) of its jurisdiction of organization, and ~~addressing~~ 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 Credit Party, 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 Credit Party authorizing the execution, delivery and performance of this Agreement and the other ~~matters~~ Credit Documents to which it is a party, and as to the ~~Lenders may reasonably request~~ incumbency and genuineness of the signature of each officer of such Credit Party 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 as 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 ~~Delaware corporate law matters~~the Administrative Agent), and ~~(B) ▇▇▇▇▇▇▇▇~~all related filings, ~~Loop & ▇▇▇▇▇▇▇▇~~if any, ~~LLP~~shall have been made, ~~Michigan counsel~~ 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 ~~the Loan Parties~~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 ~~substantially~~ each case to enjoin, restrain or prohibit, to obtain substantial damages in respect of, or that is otherwise related to or arises out of, this Agreement, any of the ~~form~~ other Credit Documents or the consummation of ~~Exhibit D-2 hereto and addressing such other matters as~~ the ~~Lenders may~~ transactions contemplated hereby or thereby, or that could reasonably ~~request.~~be expected to have a Material Adverse Effect; (~~xii~~f) Since December 31, 2015, both immediately before and after giving effect to the making of the initial Loans (if any), there shall not have occurred a change, occurrence or development that could reasonably be expected to have a Material Adverse Effect.; (Ag) ~~All costs~~On the Closing Date, there shall exist no Default or Event of Default, and all representations and warranties made by each Credit Party contained herein or in any other Credit Document qualified as to materiality shall be are true and correct and those not so qualified 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 (or, if qualified as to materiality, in all respects) only as of such specified date); (h) The Credit Parties shall have paid (i) to the Joint Arrangers and the Administrative Agent, the fees specified in the Fee Letters to be paid to them on the Closing Date, (ii) to the Administrative Agent, the initial payment of the annual administrative fee described in the Fee Letter between the Credit Parties and the Administrative Agent, and (iii) all other fees and reasonable expenses of the Joint Arrangers, the Administrative Agent and the Lenders required hereunder or under any other Credit Document to be paid on or prior to the Closing Date (including legal fees and expenses) pursuant to the Commitment Letter; (i) The current Financial Strength Rating of each Material Insurance Subsidiary is “B++” or better; (j) The Administrative Agent shall have received an Account Designation Letter from an Authorized Officer of each Borrower; (k) The Administrative Agent shall have received from the Credit Parties all documentation and other information reasonably requested by the Administrative Agent in order to comply with requirements of any Anti-Money Laundering Laws, including, without limitation, ~~legal fees~~ any applicable “know your customer” rules and ~~expenses for which ▇▇▇▇ has received an invoice at least one~~ regulations and the PATRIOT Act; and (1l) ~~day prior to the Closing Date) and other compensation contemplated by the Fee Letter and payable to the Agents or the Lender Parties~~ The Administrative Agent shall have ~~been paid~~ received such other documents, certificates, opinions and instruments in ~~full~~ connection with the transactions contemplated hereby as it shall have reasonably requested. Without limiting the generality of the provisions of Section 9.4, for purposes of determining compliance with the conditions specified in ~~cash~~ this Section 3.1, each Lender that has signed this Agreement shall be deemed to ~~the extent due and payable and (B)~~ have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received ~~evidence reasonably satisfactory to it of the repayment of all Debt under the Existing Credit Agreement, at which time all commitments, security interests and guarantees in respect of~~ notice from such Debt and the related documents thereunder will be terminated, returned and discharged in full (other than obligations which by their terms survive termination and the Existing Letters of Credit deemed to be issued hereunder) and ▇▇▇▇ shall have, substantially concurrently with the Initial Extension of Credit hereunder, delivered to the Administrative Agent copies of all documents or instruments evidencing or necessary to release all Liens on the Collateral securing such Debt. (xiv) The Lenders shall have received, at least five (5) days Lender prior to the proposed Closing Date, all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot ActDate specifying its objection thereto. (xv) For each Material Real Property, (A) a Mortgage and Mortgage Policy delivered in accordance with Section 5.01(i), (B) if such Material Real Property is a Special Flood Hazard Property, evidence reasonably satisfactory to the Administrative Agent that the Flood Insurance Requirements have been satisfied, and (C) favorable opinions of local counsel for the Loan Parties (1) in states in which the Material Real Property is located, with respect to the enforceability and perfection of the applicable Mortgages and any related fixture filings in form and substance satisfactory to the Administrative Agent and (2) in states in which the Loan Parties party to the applicable Mortgages are organized or formed, with respect to the valid existence, corporate power and authority of such Loan Parties in the granting of such Mortgages, in form and substance satisfactory to the Administrative Agent.

Appears in 1 contract

Sources: Credit Agreement (Allied World Assurance Co Holdings, AG)

Common use of Conditions Precedent to the Closing Date Clause in Contracts