Conditions to the Effectiveness. The obligations of the Incremental Term Loan Lenders to make Incremental Term Loans under this Amendment shall not become effective until the date on which each of the following conditions is satisfied (the “Term Loan Increase Effective Date”): (a) The Administrative Agent shall have received duly executed and delivered counterparts of this Amendment that, when taken together, bear the signatures of the Loan Parties, the Administrative Agent, the Collateral Agent and each Incremental Term Loan Lender. (b) The Acquisition shall have been or shall substantially concurrently be, consummated in accordance with the terms of the Acquisition Agreement without giving effect to any amendment, change or supplement or waiver of any provision thereof that is materially adverse to the interests of the Incremental Term Loan Lenders or the Lead Arrangers (in their capacity as such) without the prior written consent of the Lead Arrangers, such consent not to be unreasonably withheld, delayed or conditioned. (c) Immediately following the transactions contemplated by the Acquisition Agreement (the “Transactions”), the Refinancing shall be consummated and neither the Borrower nor any of its Subsidiaries shall have any Indebtedness or preferred equity (and the Lead Arrangers and the Administrative Agent shall have received satisfactory evidence thereof) other than as permitted to be outstanding after the Term Loan Increase Effective Date under the Credit Agreement. The Lead Arrangers and the Administrative Agent shall have received reasonably satisfactory evidence of repayment of all Indebtedness to be repaid on the Term Loan Increase Effective Date and the discharge (or the making of arrangements for discharge) of all Liens other than Liens permitted to remain outstanding under the Credit Agreement. (d) As of January 30, 2018, the representations and warranties of the Borrower and each Guarantor set forth in Article III of the Credit Agreement were true and correct in all material respects (or in all respects to the extent that any representation and warranty is qualified by materiality or Material Adverse Effect) except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date. (e) The representations and warranties made by the Target and its Subsidiaries in the Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that Borrower has the right (taking into account any applicable cure provisions) to terminate, or not to consummate, its obligations under the Acquisition Agreement as a result of a breach or inaccuracy of such representations in the Acquisition Agreement, shall be true and correct in all material respects on and as of the Term Loan Increase Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof. (f) The representations and warranties made by the Borrower and each Guarantor in Sections 3.01, 3.02, 3.03(c), 3.09, 3.14, 3,17, 3.19 (with respect to the last sentence, solely with respect to the use of proceeds of the Incremental Term Loans and with respect to each other sentence in such section, solely with respect to the USA PATRIOT Act) and 3.20 of the Credit Agreement, shall be true and correct in all material respects on and as of the Term Loan Increase Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date and further excluding the representations and warranties made by the Borrower in Section 3.20(c), which such representations and warranties shall be true and correct in all material respects on and as of such date provided therein; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof. (g) The Administrative Agent shall have received an executed solvency certificate in the form of Exhibit H to the Credit Agreement from the chief financial officer of the Borrower. (h) The Administrative Agent shall have received a request for a Borrowing as required by Section 2.03 of the Credit Agreement. (i) The Administrative Agent shall have received the results of a recent UCC and federal tax lien searches with respect to the Loan Parties and the Acquired Loan Parties. (j) So long as requested at least ten days prior to the Term Loan Increase Effective Date, the Administrative Agent shall have received, at least three days prior to the Term Loan Increase Effective Date, all documentation and other information with respect to each Loan Party and Acquired Loan Party that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act. (k) The Administrative Agent shall have received written opinions (addressed to the Administrative Agent, the Collateral Agent, the Issuing Banks and the Lenders) dated the Term Loan Increase Effective Date of (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Loan Parties and (ii) Faegre ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, Minnesota counsel for the Acquired Loan Parties. (l) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party and Acquired Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party and Acquired Loan Party executing this Amendment or any Joinder Document, as applicable, (iii) resolutions of the Board of Directors and/or similar governing bodies of each Loan Party and Acquired Loan Party approving and authorizing the execution, delivery and performance of this Amendment or Joinder Documents, as applicable, certified as of the Term Loan Increase Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s and Acquired Loan Party’s jurisdiction of incorporation, organization or formation. (m) The Lead Arrangers shall have received (A)(i) U.S. GAAP audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower as of and for the fiscal years of Borrower ended December 31, 2015 and December 31, 2016 (the Lead Arrangers acknowledge that they have received such financial statements on or prior to the date hereof) (the “Borrower Audited Financial Statements”) and (ii) unaudited consolidated balance sheets and related statements of income and cash flows of the Borrower as of and for the fiscal quarter of Borrower ended September 30, 2017, June 30, 2017 and March 31, 2017 (the Lead Arrangers acknowledge that they have received such financial statements on or prior to the date hereof) (the “Borrower Unaudited Financial Statements”); (B)(i) U.S. GAAP audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Target as of and for the fiscal years of Target ended June 30, 2015, June 30, 2016 and June 30, 2017 (the Lead Arrangers acknowledge that they have received such financial statements on or prior to the date hereof) and (ii) unaudited consolidated balance sheets and related statements of income and cash flows of the Target as of and for the six-month period ended December 31, 2017 (the Lead Arrangers acknowledge that they have received such financial statements on or prior to the date hereof); (C) a pro forma consolidated balance sheet and related statements of income for the Borrower (the “Pro Forma Financial Statements”) as of and for the last fiscal year of Borrower covered by the Audited Financial Statements of Borrower and for the latest four-quarter period ended with the latest period covered by the Unaudited Financial Statements of Borrower, in each case after giving effect to the Transactions; and (D) forecasts of the financial performance of the Borrower and its Subsidiaries (including Target) (i) on an annual basis, through the Initial Term B Facility Maturity Date and (y) on a quarterly basis, through the first year following the Term Loan Increase Effective Date. The financial statements referred to in clauses (A) and (B) shall be prepared in accordance with accounting principles generally accepted in the United States (subject, in the case of unaudited financial statements, to the absence of footnotes and subject to year-end adjustments). (n) The Borrower shall have complied with all of its obligations under the fee letter, dated as of January 30, 2018, between the Borrower and MSSF (as amended, amended and restated, supplemented or otherwise modified on or prior to the date hereof, the “Fee Letter”) and all fees due to the Administrative Agent, the Lead Arrangers and the Lenders under the Fee Letter and the commitment letter, dated as of January 30, 2018, between the Borrower and MSSF (the “Commitment Letter”) to be paid, and all expenses to be paid or reimbursed under the Commitment Letter to the Administrative Agent and the Lead Arrangers that have been invoiced at least two Business Days prior to the Term Loan Increase Effective Date, shall have been paid, in each case, from the proceeds of the initial funding of the Incremental Term Loans. (o) (A) As of the Term Loan Increase Effective Date, no Event of Default under Section 7.01(a), (b), (h) or (i) of the Credit Agreement shall have occurred and be continuing after giving effect (including on a Pro Forma Basis) to the Acquisition and the actions to be taken in connection therewith (including, without limitation, the incurrence of the Incremental Term Loans and any substantially concurrent use of proceeds thereof) and (B) as of January 30, 2018, no Default or Event of Default shall have occurred and been continuing or resulted from Borrower’s entry into the Acquisition Agreement and the consummation of the transactions contemplated thereby. (p) As of January 30, 2018, after giving pro forma effect to the Acquisition and the actions to be taken in connection therewith (including, without limitation, the incurrence of the Incremental Term Loans and the use of proceeds thereof) as if such Acquisition and other actions had occurred on such date, the Secured Leverage Ratio shall not have exceeded 3.50 to 1.00. (q) The Administrative Agent shall have received a certificate of a Responsible Officer certifying that each of the conditions in ▇▇▇▇▇▇▇ ▇ (▇), (▇), (▇), (▇), (▇), (▇) and (r) have been met. (r) Since January 30, 2018, a Material Adverse Effect (as defined in the Acquisition Agreement) has not occurred. (s) The Administrative Agent shall have received duly executed and delivered counterparts of each of the following documents, duly executed and delivered by each of the Acquired Loan Parties: (i) a Guarantee Agreement, (ii) a Joinder Agreement (as defined in the Security Agreement), (iii) to the extent required under the Security Agreement, a Pledge Agreement (as defined in the Security Agreement), and (iv) any other documents reasonably requested by the Administrative Agent in accordance with the terms of the Loan Documents in connection with the transactions contemplated by this Section 4(s) (other than the actions listed on Schedule III hereto). The documents to be entered by the Acquired Loan Parties pursuant to this Section 4(s) are referred to herein as the “Joinder Documents.” In addition, other than the actions listed on Schedule III hereto, the Borrower shall cause each Acquired Loan Party to comply with the requirements set forth in the definition of “Collateral and Guarantee Requirement” in the Credit Agreement. (t) The Administrative Agent shall have received an executed Perfection Certificate with respect to each Loan Party and Acquired Loan Party executed by a Responsible Officer of such Loan Party and Acquired Loan Party. (u) The Administrative Agent shall have received a promissory note for each of the Incremental Term Loan Lenders who requested such notes at least three (3) Business Days prior to the Term Loan Increase Date.
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Conditions to the Effectiveness. The obligations Notwithstanding any other provision of this Agreement and without affecting in any manner the Incremental Term rights of Lender under the MUSA Loan Lenders Agreement, this Agreement shall not be effective, and Borrower shall have no rights under this Agreement, and Lender shall not be obligated to make Incremental Term Loans under this Amendment available any Advance or Letter of Credit hereunder, unless and until Borrower shall have delivered to Lender, in form and substance satisfactory to Lender and (unless otherwise indicated) each dated not become effective until later than the date on which each of the following conditions is satisfied (the “Term Loan Increase Effective Closing Date”)::
(a) The Administrative Agent shall have received Note to the order of Lender duly executed and delivered counterparts of this Amendment that, when taken together, bear the signatures of the Loan Parties, the Administrative Agent, the Collateral Agent and each Incremental Term Loan Lenderby Borrower.
(b) The Acquisition shall have been or shall substantially concurrently be, consummated in accordance with the terms Resolutions of the Acquisition Agreement without giving effect to any amendmentboard of directors of Borrower certified by the Secretary or Assistant Secretary of Borrower, change or supplement or waiver of any provision thereof that is materially adverse to the interests as of the Incremental Term Loan Lenders or Closing Date, to be duly adopted and in full force and effect on such date, authorizing (i) the Lead Arrangers (in their capacity as such) without the prior written consent consummation of each of the Lead Arrangers, such consent not transactions contemplated by the Loan Documents and (ii) specific officers to be unreasonably withheld, delayed or conditionedexecute and deliver this Agreement and the other Loan Documents.
(c) Immediately following A copy of the organizational charter and all amendments thereto of Borrower and each of its Subsidiaries, certified as of a recent date by the Secretary of State of the jurisdiction of its organization, and copies of Borrower's by- laws, certified by the Secretary or Assistant Secretary of Borrower as true and correct as of the Closing Date.
(d) Governmental certificates, dated the most recent practicable date prior to the Closing Date, with telegram updates where available, showing that the Borrower and each of its Subsidiaries is organized and in good standing in the jurisdiction of its organization and is qualified as a foreign corporation and in good standing in all other jurisdictions in which it is qualified to transact business.
(i) Copies of all closing documents and certificates delivered in connection therewith; and
(ii) a certificate from the chief executive officer of Borrower certifying that the transactions contemplated by the Acquisition Stock Agreement (the “Transactions”), the Refinancing shall be consummated and neither the Borrower nor any of its Subsidiaries shall have any Indebtedness or preferred equity (and the Lead Arrangers and the Administrative Agent shall have received satisfactory evidence thereof) other than as permitted to be outstanding after the Term Loan Increase Effective Date under the Credit Agreement. The Lead Arrangers and the Administrative Agent shall have received reasonably satisfactory evidence of repayment of all Indebtedness to be repaid on the Term Loan Increase Effective Date and the discharge (or the making of arrangements for discharge) of all Liens other than Liens permitted to remain outstanding under the Credit Agreementbeen completed.
(df) As A certificate of January 30, 2018, the chief executive officer of Borrower stating that all of the representations and warranties of the Borrower and each Guarantor set forth contained herein or in Article III any of the Credit Agreement were true and Loan Documents are correct in all material respects (or in all respects to the extent that any representation and warranty is qualified by materiality or Material Adverse Effect) except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date.
(e) The representations and warranties made by the Target and its Subsidiaries in the Acquisition Agreement that are material to the interests of the Lenders, but only to the extent that Borrower has the right (taking into account any applicable cure provisions) to terminate, or not to consummate, its obligations under the Acquisition Agreement as a result of a breach or inaccuracy of such representations in the Acquisition Agreement, shall be true and correct in all material respects on and as of the Term Loan Increase Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects Closing Date as though made on and as of such earlier date; provided that, in each caseand no event has occurred and is continuing, such materiality qualifier shall not be applicable to or would result from any representations and warranties that already are qualified or modified by materiality in Advance, if made on the text thereof.
(f) The representations and warranties made by the Borrower and each Guarantor in Sections 3.01, 3.02, 3.03(c), 3.09, 3.14, 3,17, 3.19 (with respect to the last sentence, solely with respect to the use of proceeds of the Incremental Term Loans and with respect to each other sentence in such section, solely with respect to the USA PATRIOT Act) and 3.20 of the Credit Agreement, shall be true and correct in all material respects on and as of the Term Loan Increase Effective Closing Date, except to the extent such representations and warranties specifically relate to which constitutes or would constitute a Default or an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as Event of such earlier date and further excluding the representations and warranties made by the Borrower in Section 3.20(c), which such representations and warranties shall be true and correct in all material respects on and as of such date provided therein; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereofDefault.
(g) The Administrative Agent shall have received Certificates of the Secretary or an executed solvency certificate in Assistant Secretary of Borrower, dated the form of Exhibit H Closing Date, as to the Credit Agreement from the chief financial officer incumbency and signatures of the Borrowerofficers of, respectively, Borrower executing any of the Loan Documents and any other certificate or other document to be delivered pursuant hereto or thereto, together with evidence of the incumbency of such Secretary or Assistant Secretary.
(h) The Administrative Agent shall have received a request for a Borrowing Such additional information and materials as required by Section 2.03 of the Credit Agreement.
(i) The Administrative Agent shall have received the results of a recent UCC and federal tax lien searches with respect to the Loan Parties and the Acquired Loan Parties.
(j) So long as requested at least ten days prior to the Term Loan Increase Effective Date, the Administrative Agent shall have received, at least three days prior to the Term Loan Increase Effective Date, all documentation and other information with respect to each Loan Party and Acquired Loan Party that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsLender may reasonably request, including, without limitation, the USA PATRIOT Act.
(k) The Administrative Agent shall have received written opinions (addressed to the Administrative Agentcopies of any debt agreements, the Collateral Agent, the Issuing Banks and the Lenders) dated the Term Loan Increase Effective Date of (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Loan Parties and (ii) Faegre ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, Minnesota counsel for the Acquired Loan Parties.
(l) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party and Acquired Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party and Acquired Loan Party executing this Amendment or any Joinder Document, as applicable, (iii) resolutions of the Board of Directors and/or similar governing bodies of each Loan Party and Acquired Loan Party approving and authorizing the execution, delivery and performance of this Amendment or Joinder Documents, as applicable, certified as of the Term Loan Increase Effective Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s and Acquired Loan Party’s jurisdiction of incorporation, organization or formation.
(m) The Lead Arrangers shall have received (A)(i) U.S. GAAP audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower as of and for the fiscal years of Borrower ended December 31, 2015 and December 31, 2016 (the Lead Arrangers acknowledge that they have received such financial statements on or prior to the date hereof) (the “Borrower Audited Financial Statements”) and (ii) unaudited consolidated balance sheets and related statements of income and cash flows of the Borrower as of and for the fiscal quarter of Borrower ended September 30, 2017, June 30, 2017 and March 31, 2017 (the Lead Arrangers acknowledge that they have received such financial statements on or prior to the date hereof) (the “Borrower Unaudited Financial Statements”); (B)(i) U.S. GAAP audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Target as of and for the fiscal years of Target ended June 30, 2015, June 30, 2016 and June 30, 2017 (the Lead Arrangers acknowledge that they have received such financial statements on or prior to the date hereof) and (ii) unaudited consolidated balance sheets and related statements of income and cash flows of the Target as of and for the six-month period ended December 31, 2017 (the Lead Arrangers acknowledge that they have received such financial statements on or prior to the date hereof); (C) a pro forma consolidated balance sheet and related statements of income for the Borrower (the “Pro Forma Financial Statements”) as of and for the last fiscal year of Borrower covered by the Audited Financial Statements of Borrower and for the latest four-quarter period ended with the latest period covered by the Unaudited Financial Statements of Borrower, in each case after giving effect to the Transactions; and (D) forecasts of the financial performance of the Borrower and its Subsidiaries (including Target) (i) on an annual basis, through the Initial Term B Facility Maturity Date and (y) on a quarterly basis, through the first year following the Term Loan Increase Effective Date. The financial statements referred to in clauses (A) and (B) shall be prepared in accordance with accounting principles generally accepted in the United States (subject, in the case of unaudited financial statements, to the absence of footnotes and subject to year-end adjustments).
(n) The Borrower shall have complied with all of its obligations under the fee letter, dated as of January 30, 2018, between the Borrower and MSSF (as amended, amended and restated, supplemented or otherwise modified on or prior to the date hereof, the “Fee Letter”) and all fees due to the Administrative Agent, the Lead Arrangers and the Lenders under the Fee Letter and the commitment letter, dated as of January 30, 2018, between the Borrower and MSSF (the “Commitment Letter”) to be paid, and all expenses to be paid or reimbursed under the Commitment Letter to the Administrative Agent and the Lead Arrangers that have been invoiced at least two Business Days prior to the Term Loan Increase Effective Date, shall have been paid, in each case, from the proceeds of the initial funding of the Incremental Term Loans.
(o) (A) As of the Term Loan Increase Effective Date, no Event of Default under Section 7.01(a), (b), (h) or (i) of the Credit Agreement shall have occurred and be continuing after giving effect (including on a Pro Forma Basis) to the Acquisition and the actions to be taken in connection therewith (including, without limitation, the incurrence of the Incremental Term Loans and any substantially concurrent use of proceeds thereof) and (B) as of January 30, 2018, no Default or Event of Default shall have occurred and been continuing or resulted from Borrower’s entry into the Acquisition Agreement and the consummation of the transactions contemplated thereby.
(p) As of January 30, 2018, after giving pro forma effect to the Acquisition and the actions to be taken in connection therewith (including, without limitation, the incurrence of the Incremental Term Loans and the use of proceeds thereof) as if such Acquisition security agreements and other actions had occurred on such date, the Secured Leverage Ratio shall not have exceeded 3.50 to 1.00material contracts.
(q) The Administrative Agent shall have received a certificate of a Responsible Officer certifying that each of the conditions in ▇▇▇▇▇▇▇ ▇ (▇), (▇), (▇), (▇), (▇), (▇) and (r) have been met.
(r) Since January 30, 2018, a Material Adverse Effect (as defined in the Acquisition Agreement) has not occurred.
(s) The Administrative Agent shall have received duly executed and delivered counterparts of each of the following documents, duly executed and delivered by each of the Acquired Loan Parties: (i) a Guarantee Agreement, (ii) a Joinder Agreement (as defined in the Security Agreement), (iii) to the extent required under the Security Agreement, a Pledge Agreement (as defined in the Security Agreement), and (iv) any other documents reasonably requested by the Administrative Agent in accordance with the terms of the Loan Documents in connection with the transactions contemplated by this Section 4(s) (other than the actions listed on Schedule III hereto). The documents to be entered by the Acquired Loan Parties pursuant to this Section 4(s) are referred to herein as the “Joinder Documents.” In addition, other than the actions listed on Schedule III hereto, the Borrower shall cause each Acquired Loan Party to comply with the requirements set forth in the definition of “Collateral and Guarantee Requirement” in the Credit Agreement.
(t) The Administrative Agent shall have received an executed Perfection Certificate with respect to each Loan Party and Acquired Loan Party executed by a Responsible Officer of such Loan Party and Acquired Loan Party.
(u) The Administrative Agent shall have received a promissory note for each of the Incremental Term Loan Lenders who requested such notes at least three (3) Business Days prior to the Term Loan Increase Date.
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