Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent: (a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower; (ii) a Note executed by the Borrowers in favor of each Lender requesting a Note; (iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party; (iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; (v) a favorable opinion of each of Xxxxxx & Xxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent); (vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date; (vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect; (viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby; (ix) the Security Documents, each duly executed by the applicable Loan Parties; (x) all other Loan Documents, each duly executed by the applicable Loan Parties; and (xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers. (b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
Appears in 5 contracts
Samples: Credit Agreement (Barnes & Noble Education, Inc.), Credit Agreement (Barnes & Noble Education, Inc.), Credit Agreement (Barnes & Noble Education, Inc.)
Conditions of Initial Credit Extension. The effectiveness of this Agreement and the obligation of the LC each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or e-mails (in a .pdf format) or telecopies (in each case, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Revolving Credit Note executed by the Borrowers Borrower in favor of each Revolving Credit Lender requesting a Revolving Credit Note, a Term A-1 Note executed by the Borrower in favor of each Term A-1 Lender requesting a Term A-1 Note and a Term A-2 Note executed by the Borrower in favor of each Term A-2 Lender requesting a Term A-2 Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in (A) its jurisdiction of organization and (B) each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx McGuireWoods LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate of a Responsible Officer of Borrower either (A) 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 such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2December 31, 2015, 2017 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, Effect and (C) either that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that (1) no consentsrelates to this Agreement or any other Loan Document, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party any of the Loan Documents to which it is a partytransactions contemplated hereby or thereby, or (2) that all such consents, licenses and approvals could reasonably be expected to have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effecta Material Adverse Effect;
(viii) a certificate Solvency Certificate from the chief financial officer of the Lead BorrowerBorrower certifying that, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated herebyto occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), each Loan Party is, individually and together with its Subsidiaries on a consolidated basis, Solvent;
(ix) a duly completed Compliance Certificate, giving pro forma effect to the Security Documentstransactions to occur on the Closing Date (including, each duly executed by without limitation, all Credit Extensions to occur on the applicable Loan PartiesClosing Date) (such Compliance Certificate, the “Pro Forma Closing Date Compliance Certificate”);
(x) all other Loan Documents, each duly executed by the applicable Loan Partiesfinancial statements referenced in Section 5.05(a) and (b); and
(xi) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as the Administrative Agent, the L/C Issuers, the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required hereunder or under the Fee Letter to be paid on or before the Closing Date shall have been paid.
(c) Upon the reasonable request of any Lender made at least ten days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the U.S. Patriot Act, in each case at least five days prior to the Closing Date.
(d) At least five days prior to the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation it shall deliver to each Lender that so requests, in a form acceptable to such Lender, a Beneficial Ownership Certification in relation to the Borrower.
(e) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced (which invoice may be in summary form) prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements 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). 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 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 Administrative Agent shall have received written notice from Lenders other than such Lender prior to the Lead Lenders executing proposed Closing Date specifying its objection thereto. Notwithstanding anything contained elsewhere in this Agreement, each Lender that is a “Lender” (as defined in the Existing Credit Agreement) hereby waives any right to indemnification for any funding loss or expense that such Lender may sustain or incur as a result of a prepayment by the Borrower of any Loans outstanding under the Existing Credit Agreement on the Closing Date prior to the last day of the “Interest Period” (as defined in the Existing Credit Agreement) applicable thereto that is required to effect the refinancing of loans under the Existing Credit Agreement with Loans made under this Agreement or as a result of the allocation of any Loans to Lenders that were not “Lenders” under the Existing Credit Agreement.
Appears in 4 contracts
Samples: Credit Agreement (Apple Hospitality REIT, Inc.), Credit Agreement (Apple Hospitality REIT, Inc.), Credit Agreement (Apple Hospitality REIT, Inc.)
Conditions of Initial Credit Extension. The obligation effectiveness of the LC Issuer amendment and each Lender restatement of the Existing Credit Agreement as set forth herein and the obligations of the Lenders to make its initial Credit Extension hereunder is Loans on the Restatement Date are each subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated as of the Closing Restatement Date (or, in the case of certificates of governmental officials, a recent date before the Closing Restatement Date) and each in form and substance satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement sufficient in number for distribution to from the Borrower, the Administrative Agent, Agent and each Lender and the Lead BorrowerLender;
(ii) executed counterparts of the Reaffirmation Agreement from each Guarantor;
(iii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iiiiv) such customary certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(ivv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require and as are customary for transactions of this type to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, and in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(vvi) a favorable opinion of each of Xxxxxx (A) Winston & Xxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine (B) Xxxxx & Xxxxx Lardner LLP, Wisconsin counsel to the Loan Parties, (C) Xxxxxxxxxxx & Xxxxx, P.A., Minnesota counsel to the Loan Parties, (D) Xxxxxxxx Xxxxxxx LLP, Georgia counsel to the Loan Parties, and (E) Xxxxx Xxxx LLP, Missouri counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection are customary for financings of the Liens in favor of the Collateral Agent)this type;
(vivii) an officer’s certificate prepared by the chief financial officer of the Borrower in the form of Exhibit H hereto certifying that the Borrower and its Subsidiaries, on a consolidated basis, after giving effect to the Transactions, are Solvent;
(viii) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) have been satisfied; and
(ix) an initial Request for Credit Extension with respect to the Credit Extensions to be made on the Restatement Date in accordance with the requirements hereof.
(b) All accrued costs, fees and expenses (including reasonable and documented legal fees and expenses and the fees and expenses of any other advisors) and other compensation payable to the Administrative Agent, the Arrangers or any Lender required to be paid on the Restatement Date pursuant to the BofA Fee Letter and/or the CoBank Fee Letter, in each case, to the extent invoiced at least two (2) Business Days prior to the Restatement Date (or such later date as the Borrower may reasonably agree), shall have been paid.
(c) The Administrative Agent and the Lenders shall have received copies of the financial statements referred to in Section 4.02 have been satisfied 5.05(a) and (after giving effect b), each in form and substance reasonably satisfactory to each of them.
(d) There shall not exist any action, suit, investigation or proceeding pending or, to the consummation knowledge of the transactions contemplated Borrower, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(e) The Administrative Agent shall have received, at least three (3) Business Days prior to the Restatement Date, all documentation and other information required by regulatory authorities under this Agreement applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, to the extent any such information or documentation was requested by the Lenders at least ten (10) days prior to the Restatement Date.
(f) The Administrative Agent shall have received results of recent customary UCC lien searches with respect to the Borrower and the other Loan Documents Parties in their applicable jurisdictions of organization, and such searches shall reveal no Liens on any of the Closing assets of such parties except for Liens permitted by Section 7.01 or discharged on or prior to the Restatement Date pursuant to documentation satisfactory to the Administrative Agent.
(including any Loans made or Letters of Credit issued hereunder))g) Since December 31, (B) that 2016, there has been no not occurred any event or circumstance since May 2, 2015, that has had or could be reasonably expected to haveexpected, either individually or in the aggregate, to have a Material Adverse Effect. Without limiting the generality of the provisions of the last paragraph of Section 9.03, (C) either that (1) no consents, licenses or approvals are required in connection for purposes of determining compliance with the executionconditions specified in this Section 4.01, delivery and performance 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 hereunder to be consented to or approved by such Loan Party and or acceptable or satisfactory to a Lender unless the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off Administrative Agent shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant received notice from such Lender prior to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing proposed Restatement Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersspecifying its objection thereto.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
Appears in 3 contracts
Samples: Credit Agreement (TreeHouse Foods, Inc.), Credit Agreement (TreeHouse Foods, Inc.), Credit Agreement (TreeHouse Foods, Inc.)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 Agent and each of the Administrative AgentLenders:
(i) executed counterparts of this Agreement Agreement, all Collateral Documents and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a such Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel Parties acceptable to the Loan Parties, in each case, Agent addressed to the Administrative Agent and each Lender and Lender, as to such the matters set forth concerning the Loan Parties and the Loan Documents in the form attached hereto as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)Exhibit F;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis duly completed Compliance Certificate as of the Closing Date after giving effect last day of the fiscal quarter of Borrower most recently ended prior to the transactions contemplated herebyClosing Date, signed by a Responsible Officer of Borrower;
(ix) evidence that all commitments under the Amended and Restated Revolving Credit, Term Loan and Security DocumentsAgreement dated August 8, each duly executed by 2003, as amended, among Borrower and certain of its Subsidiaries and PNC Bank National Association, as lender and as agent (the applicable Loan Parties“Existing Credit Agreement”) have been or concurrently with the Closing Date are being terminated, and all outstanding amounts thereunder paid in full and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(x) a forecast for the Borrower’s fiscal year ending May 31, 2007, in the same format as required for the 2008 fiscal year forecast, all other Loan Documents, each duly executed by the applicable Loan Partiesas described in Section 6.01(e); and
(xi) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as Agent, the L/C Issuer or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Agent, Borrower shall have paid the reasonable fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by 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 the aggregate amount of such fees, exclusive of disbursements, shall not exceed $65,000 for work performed prior to the Closing Date and that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Agent).
(d) The Closing Date shall have occurred on or before November 30, 2006. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in 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 Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 3 contracts
Samples: Credit Agreement (Mistras Group, Inc.), Credit Agreement (Mistras Group, Inc.), Credit Agreement (Mistras Group, Inc.)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (where applicable), 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement, the Security Agreement, the Pledge Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerSubsidiary Guaranty;
(ii) a Note Notes executed by the Borrowers Borrower in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Loan Party Parties is validly existing, in good standing and qualified to engage standing, as applicable in business in each jurisdiction where its ownership, lease or operation their respective jurisdictions of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectformation;
(v) a such executed documents as the Administrative Agent may reasonably require to perfect the Lenders’ first priority security interest in the Collateral, subject to the Liens set forth in Schedule 7.01, including notices of grants of security interests in intellectual property to be filed with the United States Patent and Trademark Office or United States Copyright Office, filings with the United States Surface Transportation Board and stock transfer powers;
(vi) favorable opinion opinions of each of Xxxx Xxxxxxxx LLP and Xxxxxx & Xxxxxx Xxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender Lender;
(vii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and as to such matters concerning approvals required in connection with the execution, delivery and performance by the Loan Parties and the validity against the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection Parties of the Liens Loan Documents, and such consents, licenses and approvals shall be in favor of the Collateral Agent)full force and effect, or (B) stating that, except as otherwise provided in Section 5.03, no such consents, licenses or approvals are so required;
(viviii) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;; and
(viiix) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 At least five days prior to the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall deliver a Beneficial Ownership Certification in Aggregate Commitments relation to the Borrower.
(c) Any fees required to be paid on or before the Closing Date shall have been paid.
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to 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). 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 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 3 contracts
Samples: Credit Agreement (Greenbrier Companies Inc), Credit Agreement (Greenbrier Companies Inc), Credit Agreement (Greenbrier Companies Inc)
Conditions of Initial Credit Extension. The obligation of the LC each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies electronic copies (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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerCompany;
(ii) a Note Notes executed by the Borrowers in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party the Company is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion opinions of each of Xxxxxx Xxxxxxxxx & Xxxxxx Xxxxxxx LLP, counsel to the Loan Parties, and Cravathof the Vice President and Corporate Secretary of the Company, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender Lender, in substantially the forms of Exhibits I-1 and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (includingI-2, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)respectively;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; (C) the current Debt Ratings and (D) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrowers, threatened in any court or before any arbitrator or Governmental Authority that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viiiix) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance at least five days prior to the Administrative AgentClosing Date, attesting any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Partiessuch Borrower;
(x) all upon the reasonable request of any Lender made at least 10 days prior to the Closing Date, the Company shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other Loan Documentsinformation so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the PATRIOT Act, in each duly executed by case at least five days prior to the applicable Loan PartiesClosing Date; and
(xi) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any and all fees and expenses of the Administrative Agent, the Arrangers, the Lenders and their respective Affiliates required to be paid on or before the Closing Date shall have been paid.
(c) The Company shall have paid all reasonable and documented fees, expenses and disbursements of McGuireWoods LLP, as counsel to the Administrative Agent, and of special and local counsel to the Lenders retained by the Administrative Agent with respect to any Foreign Obligors, in each case to the extent invoiced prior to the Closing Date (provided that the Company shall remain liable for any additional reasonable fees and expenses of such counsel to the Administrative Agent in accordance with Section 10.04). 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 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Avnet Inc), Credit Agreement (Avnet Inc)
Conditions of Initial Credit Extension. The obligation of the LC each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 AgentAgent and each of the Lenders:
(i) executed counterparts of (A) this Agreement, (B) the Guarantee and Collateral Agreement, (C) each Intellectual Property Security Agreement and (D) each other Collateral Document (other than any Mortgage), in each case sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(iiA) a Revolving Credit Note executed by the Borrowers Borrower in favor of each Revolving Credit Lender requesting a Revolving Credit Note, and (B) a Term Note executed by the Borrower in favor of each Term Lender requesting a Term Note;
(iii) such customary certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of certified Organization Documents with respect to each Loan Party’s Organization Documents Party and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Loan Party Parties is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownershipof formation or organization, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectas applicable;
(v) a favorable opinion customary opinions of each of Xxxxxx & Xxxxxx LLPXxxxx Day, as counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the consummation by such Loan Party of the Transactions to be consummated on the Closing Date and the execution, delivery and performance by such Loan Party, and the validity against such Loan Party, of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement satisfied, and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) the Audited Financial Statements, which shall be reasonably satisfactory to the Administrative Agent and the Lenders;
(ix) a solvency certificate from signed by the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting Borrower as to the Solvency of the Loan Parties Borrower and its Subsidiaries, on a consolidated basis as of the Closing Date basis, after giving effect to the transactions contemplated hereby;
(ixA) the Security entering into and making of the initial Credit Extensions under the Loan Documents to occur on the Closing Date, (B) the repayment and/or refinancing of the Existing Credit Agreement to occur on or prior to the Closing Date, (C) the payment of fees and expenses in connection with the Facilities and the Loan Documents, each duly executed by ; and (D) all other transactions related to the applicable Loan Parties;Facilities to occur on the Closing Date; and
(x) evidence that the Existing Credit Agreement has been, or concurrently with the Closing Date is being, terminated and all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created securing obligations under the Loan Documents and all such documents and instruments shall Existing Credit Agreement have been so filedbeen, registered or recordedconcurrently with the Closing Date are being, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.released;
Appears in 2 contracts
Samples: Credit Agreement (Polypore International, Inc.), Credit Agreement (Polypore International, Inc.)
Conditions of Initial Credit Extension. The obligation of the LC each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedentprecedent on the Closing Date:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 reasonably satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerAgreement;
(ii) a Note executed by the Co-Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in its state of incorporation and in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx (A) XxXxxxxxx Will & Xxxxxx Xxxxx LLP, special counsel to the Loan Parties, Parties and Cravath, Swaine & Xxxxx LLP, counsel to (B) the General Counsel of the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) a certificate signed by a Responsible Officer of the Co-Borrowers certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) except as set forth in any filings with the Securities & Exchange Commission by Premier, Inc. prior to the Closing Date (but excluding any risk factors, forward-looking disclosures and any other disclosures that are cautionary, predictive or forward-looking in nature other than any specific, historic factual information contained therein), there has been no event or circumstance that has occurred since June 30, 2018 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) a calculation of the Consolidated Total Net Leverage Ratio as of the last day of the fiscal year of the Co-Borrowers ended on June 30, 2018;
(viii) a certificate signed by a Responsible Officer of the Co-Borrowers certifying that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Co-Borrowers, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect;
(ix) an officer’s certificate prepared by the chief financial officer or other Responsible Officer approved by the Administrative Agent of Holdings as to the financial condition, solvency and related matters of the Loan Parties and their Subsidiaries, on a Consolidated Basis, after giving effect to the transactions and the initial borrowings under the Loan Documents.
(x) evidence reasonably establishing that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viiixi) a certificate from the chief financial officer copies of the Lead Borrowerfinancial statements referred to in Section 5.05;
(xii) evidence reasonably establishing that Indebtedness for borrowed money of the Loan Parties and their Subsidiaries existing pursuant to the Existing Credit Agreement shall be repaid in full and all security interests, satisfactory in form if any, and substance guarantees related thereto shall be terminated on or prior to the Closing Date; and
(xiii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, attesting to any L/C Issuer, the Solvency of Swing Line Lender or the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Co-Borrowers shall have paid (a) all reasonable actual fees, charges and disbursements of Xxxxxxxx, Xxxxxxxx & Xxxxxx, P.A., counsel to the Administrative Agent and Xxxxx Fargo Securities, LLC (directly to such counsel if requested by the Administrative Agent), to the extent invoiced on or prior to the Closing Date and (b) all reasonable actual due diligence expenses incurred by the Administrator Agent and the Arrangers, in connection with the syndication of the credit facilities provided for herein and the preparation, negotiation, execution, and delivery of the Loan Documents; provided, however, the fees paid to counsel to the Administrative Agent and the Arrangers shall in no event exceed the amount set forth in the Fee Letter.
(i) Upon the reasonable request of any Lender made at least ten days prior to the Closing Date, the Co-Borrowers shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act, in each case at least five days prior to the Closing Date and (ii) at least five days prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party. 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 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Premier, Inc.), Credit Agreement (Premier, Inc.)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies, faxes or telecopies scanned pdf 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 reasonably satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerAgreement;
(ii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) the Collateral Documents, executed by the Loan Parties party thereto in appropriate form for recording, where necessary, together with such evidence that such reasonable actions as are necessary or, in the opinion of the Administrative Agent or the Required Lenders, desirable to perfect the Administrative Agent’s Liens in the Collateral, have been taken or arrangements therefor satisfactory to the Administrative Agent have been made;
(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 (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(ivv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(vvi) (A) a favorable opinion of each of Xxxxxx Weil, Gotshal & Xxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such the matters concerning the Loan Parties set forth in Exhibit H, and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect B) local counsel opinions relating to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)real property Collateral;
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of the Lead Borrower and its Subsidiaries from the Initial Cap Table, certifying (E) that executed copies of the Spin-Off Agreements are attached thereto and (FA) that the Spin-Off shall conditions specified in Sections 4.02(a) and (b) have occurredbeen satisfied, and (B) that there has been no event or circumstance since the senior credit facilities date of the B&N Parties have closed on Audited Financial Statements that has had or substantially simultaneously with could be reasonably expected to have, either individually or in the Closing Dateaggregate, a Material Adverse Effect;
(viiix) evidence a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Parent and the Borrower ended March 28, 2009, signed by the chief executive officer, chief financial officer, treasurer or controller of the Parent;
(x) (A) a survey of the New Jersey Headquarters, the Elk Grove Facility and the Oregon Tank Farm, and (B) mortgagee title insurance policies (with customary endorsements) covering each of the Elk Grove Facility and the Oregon Tank Farm (a mortgagee title insurance policy covering the New Jersey Headquarters shall not be required);
(xi) A certificate of the Borrower confirming that (A) all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
, (viiiB) a certificate from there are no past due premiums in respect of any such insurance, and (C) attached thereto are the chief financial officer certificates of the Lead Borrowerinsurance, satisfactory in form and substance to naming the Administrative Agent, attesting on behalf of the Secured Parties, as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the Solvency assets and properties of the Loan Parties on that constitute Collateral;
(xii) copies of environmental reports, if any, previously prepared for the Borrower with respect to the New Jersey Headquarters, the Elk Grove Facility, and the Oregon Tank Farm;
(xiii) a consolidated basis as certificate of a Responsible Officer of the Borrower certifying that the commitments to extend credit under the Existing Credit Agreement have been, or concurrently with the Closing Date after giving effect to are being, terminated, all indebtedness or other obligations then due under the transactions contemplated herebyExisting Credit Agreement have been, or concurrently with the Closing Date are being, repaid, and no letters of credit will remain outstanding under the Existing Credit Agreement;
(ixxiv) a certificate of a Responsible Officer of the Security DocumentsBorrower certifying that the Borrower Partnership Agreement as in effect on the Closing Date has been amended to include provisions (A) permitting the pledge of the general and limited partnership interests of the Borrower as Collateral, each duly executed by (B) providing for the applicable Loan Parties;
right to enforce such Lien and acquire or transfer such limited and general partnership interests (xand in connection with such enforcement, be admitted, or have such transferee be admitted, as a substitute limited partner or general partner, as applicable, without the consent of the Board of Supervisors of the Borrower or any other person or entity), and (C) all other Loan Documents, each duly executed by as may be necessary to effectuate the applicable Loan Partiesforegoing; and
(xixv) such other assurances, certificates or documents as the Administrative Agent, the L/C Issuer, the Swing Line Lender or any Lender reasonably may require.
(i) All fees required to be paid to the Administrative Agent and the Arranger on or before the Closing Date shall have been paid and (ii) all documents fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and instruments, disbursements of counsel (including Uniform Commercial Code financing statements, required by law or reasonably local counsel) to the Administrative Agent (directly to such counsel if requested by the Collateral Agent Administrative Agent) to the extent invoiced prior to 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 Arrangers to be filedAdministrative Agent or such counsel).
(d) The Closing Date shall have occurred on or before July 31, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments 2009.
(e) The conditions precedent set forth in Section 4.02 shall have been so filedsatisfied. Without limiting the generality of the provisions of the last paragraph of Section 9.03, registered for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or recordedaccepted or to be satisfied with, in each case, document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the reasonable satisfaction of the Collateral Agent and the Arrangersproposed Closing Date specifying its objection thereto.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Suburban Propane Partners Lp), Credit Agreement (Suburban Propane Partners Lp)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 each of the Lenders (except to the extent expressly waived or postponed pursuant to the Side Letter Agreement of even date herewith among the Company and the Administrative Agent:):
(i) executed counterparts of (A) this Agreement Agreement, (B) the Security Agreement, (C) the Pledge Agreement, (D) the Escrow and Security Agreement, (E) the Sonic Financial Pledge Agreement, (F) each Guaranty and (G) each other Security Instrument (other than Landlord Waivers, for which one (1) original counterpart shall be sufficient) required to be delivered in connection herewith, in each case, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerCompany;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in the respective jurisdictions specified in Schedule 4.01, which includes each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx Xxx Xxxxx & Xxxxxx Xxxxxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit P (which shall include matters of Delaware, North Carolina, South Carolina and Federal Law) and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a favorable opinion of local counsel to the Loan Parties in Florida, Texas, California, Alabama, and Tennessee, addressed to the Administrative Agent and each Lender in form and substance satisfactory to the Administrative Agent;
(vii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of the Lead Borrower and its Subsidiaries from the Initial Cap Table, Company certifying (E) that executed copies of the Spin-Off Agreements are attached thereto and (FA) that the Spin-Off shall conditions specified in Sections 4.02(a) and (b) have occurredbeen satisfied, and (B) that there has been no event or circumstance since the senior credit facilities date of the B&N Parties Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(ix) a certificate signed by the chief executive officer, chief financial officer, treasurer or chief accounting officer (or in the case of Sonic Financial, a vice president) of each Loan Party certifying that each Loan Party is Solvent, after giving effect to this Agreement and the other Loan Documents and the Indebtedness pursuant hereto and thereto;
(x) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Company ended on September 30, 2005, signed by a Responsible Officer of the Company;
(xi) a duly completed Revolving Borrowing Base Certificate dated as of the Closing Date certifying as to the Revolving Borrowing Base as of September 30, 2005, signed by a Responsible Officer of the Company;
(xii) a duly completed Used Vehicle Borrowing Base Certificate dated as of the Closing Date certifying as to the Used Vehicle Borrowing Base as of September 30, 2005, signed by a Responsible Officer of the Company;
(xiii) a copy of (A) each standard form of Franchise Agreement for each vehicle manufacturer or distributor and (B) each executed Framework Agreement;
(xiv) duly executed consents and waivers required pursuant to any Franchise Agreement or Framework Agreement;
(xv) executed counterparts of intercreditor agreements between the Administrative Agent and the holders of Permitted Silo Indebtedness outstanding as of the Closing Date and evidence that all Liens securing obligations under the Permitted Silo Indebtedness (other than those Liens securing the property financed by such Permitted Silo Indebtedness) have closed on been or substantially simultaneously concurrently with the Closing Date are being released (unless arrangements have been made to the satisfaction of the Administrative Agent in its sole discretion for release of such Liens within a reasonable period after the Closing Date);
(viixvi) executed counterparts of intercreditor agreements between the Administrative Agent and the holders of Interim Floorplan Indebtedness permitted hereunder outstanding on the Closing Date and evidence that all Liens securing obligations under the Interim Floorplan Indebtedness (other than those Liens securing the property financed by such Interim Floorplan Indebtedness) have been or concurrently with the Closing Date are being released (unless arrangements have been made to the satisfaction of the Administrative Agent in its sole discretion for the termination of such facilities and release of such Liens within a reasonable period after the Closing Date);
(xvii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect, including endorsements naming the Administrative Agent (on behalf of the Secured Parties) as an additional insured and loss payee, as the case may be, on all such insurance policies maintained with respect to properties of the Company or any Loan Party constituting part of the Collateral;
(viiixviii) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released (unless arrangements have been made to the satisfaction of the Administrative Agent in its sole discretion for release of such Liens within a reasonable period after the Closing Date);
(xix) evidence that the Existing New Vehicle Facilities have been or concurrently with the Closing Date are being terminated and all Liens securing obligations under the Existing New Vehicle Facilities have been or concurrently with the Closing Date are being released (unless arrangements have been made to the satisfaction of the Administrative Agent in its sole discretion for termination of such facilities and release of such Liens within a reasonable period after the Closing Date);
(xx) consolidating balance sheets (including a separate line item for Eligible Used Vehicle Inventory) for the Company and each Subsidiary as at the end of September 30, 2005, and the related consolidating statements of income or operations, all in reasonable detail prepared by management of the Company or such Subsidiary, in each case with subtotals for (a) all New Vehicle Borrowers and the portion of the Dual Subsidiaries not represented by Specified Franchises and (b) all Silo Subsidiaries and the portion of the Dual Subsidiaries represented by Specified Franchises, and in each case prior to intercompany eliminations;
(xxi) forecasts (including assumptions) prepared by the management of the Company of consolidated balance sheets, income statements and cash flow statements in the form and substance reasonably satisfactory to the Administrative Agent for each of the first four years following the Closing Date;
(xxii) If required by the Administrative Agent in its sole discretion, satisfactory results of audits of the Collateral, provided that, whether or not any such audit is performed, the Administrative Agent and the New Vehicle Swing Line Lender shall be entitled to rely on information provided by any existing lender of the Company or its Subsidiaries as to any Vehicles and Existing New Vehicle Facilities being refinanced or paid down on the Closing Date.
(xxiii) (x) delivery by the Company and each applicable Loan Party owning any Equity Interests required to be pledged pursuant to this Agreement, the Pledge Agreement or the Sonic Financial Pledge Agreement of all stock certificates evidencing such pledged Equity Interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto and (y) delivery by the Company and each other applicable Loan Party owning any Equity Interests required to be delivered in escrow pursuant to the Escrow and Security Agreement of all stock certificates evidencing such Equity Interests;
(xxiv) UCC financing statements for filing in all places required by applicable law to perfect the Liens of the Administrative Agent for the benefit of the Secured Parties under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be necessary under applicable law to perfect the Liens of the Administrative Agent for the benefit of the Secured Parties under the Security Instruments as a first priority Lien in and to such other Collateral as the Administrative Agent may require;
(xxv) UCC search results with respect to the Borrowers showing only Liens acceptable to the Administrative Agent (or pursuant to which arrangements satisfactory to the Administrative Agent shall have been made to remove any unacceptable Liens promptly after the Closing Date),
(xxvi) such duly executed Landlord Waivers as may be requested by the Administrative Agent in its sole discretion;
(xxvii) a certificate from the chief financial officer signed by a Responsible Officer of the Lead BorrowerCompany certifying as to the status of the Unrestricted Subsidiaries;
(xxviii) such other assurances, satisfactory in form and substance to certificates, documents, consents or opinions as the Administrative Agent, attesting to the Solvency of L/C Issuer, the Loan Parties on a consolidated basis as of Revolving Swing Line Lender, the Closing Date after giving effect to New Vehicle Swing Line Lender, the transactions contemplated hereby;
(ix) Used Vehicle Swing Line Lender or the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to 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 Company and the Administrative Agent). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in 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 hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Sonic Automotive Inc), Credit Agreement (Sonic Automotive Inc)
Conditions of Initial Credit Extension. The obligation of the LC each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies “PDFs” (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 AgentAgent and each Lender:
(i) executed counterparts of this Agreement Agreement, the Guaranties and the applicable Security Instruments, sufficient in number for distribution to the Administrative Agent, each Lender Lender, the Company and the Lead Foreign Borrower;
(ii) a Note Notes executed by each of the Borrowers in favor of each Lender requesting a Notethat has requested Notes;
(iii) such certificates of certificates, resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers Officers, secretaries or assistant secretaries (or other individuals performing similar functions) of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Loan Party Parties is validly existing, in good standing or the equivalent thereof (to the extent applicable) and qualified to engage in business in each its jurisdiction where its ownership, lease of incorporation or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, Parties including special counsel to the Loan PartiesForeign Borrower in Luxembourg, and special counsel to the Foreign Guarantor in Poland, in each case, addressed to the Administrative Agent and each Lender (and expressly permitting reliance by successors and assigns of the Administrative Agent and each Lender), as to such the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent or the Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) a certificate for each Company and the Foreign Borrower, as applicable, signed by a Responsible Officer thereof certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect and (C) the current Debt Ratings; and
(viii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) The Administrative Agent shall have received evidence that all satisfactory to it of the insurance required to be maintained by the Loan Parties pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;Security Agreement.
(viiic) The Administrative Agent shall have received the results of a certificate from the chief financial officer of the Lead BorrowerLien search (including a search as to judgments and tax matters), satisfactory in form and substance reasonably satisfactory thereto, made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in assets of the same type as the Collateral of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Liens permitted pursuant to Section 7.01).
(d) Any fees and expenses required to be paid on or before the Closing Date under the Fee Letters or under any Loan Document shall have been paid.
(e) Unless waived by the Administrative Agent, attesting the Company and the Foreign Borrower, as applicable, each shall have paid all fees, charges and disbursements of counsel to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect Administrative Agent (directly to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably such counsel if requested by the Collateral Agent 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 Company and the Arrangers Administrative Agent). 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 this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be filedsatisfied with, registered each document or recorded to create or perfect the first priority Liens intended other matter required thereunder to be created under consented to or approved by or acceptable or satisfactory to a Lender unless the Loan Documents and all such documents and instruments Administrative Agent shall have been so filed, registered or recorded, in each case, received notice from such Lender prior to the reasonable satisfaction of the Collateral Agent and the Arrangersproposed Closing Date specifying its objection thereto.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Commercial Metals Co), Credit Agreement (Commercial Metals Co)
Conditions of Initial Credit Extension. The obligation of the LC each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies “PDFs” (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 reasonably satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerCompany;
(ii) a Note Notes executed by the Borrowers in favor of each Lender requesting that has requested a NoteNote at least two Business Days in advance of the Closing Date;
(iii) such certificates of resolutions or other action, powers of attorney, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) such documents, certifications and other evidence (including relevant copies of each Loan Party’s Organization Documents trade and such other documents and certifications registers) as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing (or the equivalent thereof with respect to Foreign Borrowers, to the extent applicable) and qualified to engage in business in each its jurisdiction where its ownershipof formation or in the case of a Borrower incorporated in Luxembourg, lease or operation of properties or an excerpt from the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse EffectLuxembourg Trade and Companies Register;
(v) a favorable opinion opinions of each of Xxxxxx & Xxxxxx LLPcounsel, counsel to the Loan Parties, including local and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Partiesspecial counsel, in each case, case addressed to the Administrative Agent and each Lender and Lender, as to such the matters concerning the Loan Parties and their capacity to enter into the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Urs Corp /New/), Credit Agreement (Urs Corp /New/)
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2April 30, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have BNED Credit Agreement has closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Revolving Commitments shall have been received from Revolving Lenders other than the Lead Lenders executing this Agreement.
(c) After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment (including, without limitation, the Existing Letters of Credit), Availability shall be not less than $300,000,000.
(d) The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date and relating to the fiscal month ended on July 4, 2015, duly executed by a Responsible Officer of the Lead Borrower.
(e) All fees required to be paid to the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(f) The Administrative Agent and each Lender shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”).
(g) The Lead Lenders shall be reasonably satisfied with the terms and conditions, taken as a whole, of the Spin-Off Agreements to the extent material to the interests of the Lenders.
(h) The Spin-Off shall have occurred, and the BNED Credit Agreement shall close on or substantially simultaneously with the Closing Date.
(i) The payoff of the Existing Credit Agreement (including the termination of commitments thereunder and agreements to terminate, or assign to the Collateral Agent for the benefit of the Secured Parties, all Liens arising thereunder) shall be effected on the Closing Date in accordance with the terms and conditions of the Payoff Letter (including, if applicable, the provision of cash collateral or a Letter of Credit with respect to any Letters of Credit then issued and outstanding under the Existing Credit Agreement). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in 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 Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Barnes & Noble Inc), Credit Agreement (Barnes & Noble Inc)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder enter into this Agreement is subject to satisfaction of the following conditions precedent:
(a) The Receipt by the Administrative Agent’s receipt Agent of the following, each :
(i) executed counterparts of which shall be originals or telecopies (followed promptly by originals) unless otherwise specifiedthis Agreement and the other Loan Documents, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (orParty and, in the case of certificates of governmental officialsthis Agreement, a recent date before the Closing Date) and by each in form and substance satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerLender;
(ii) copies of the Organization Documents of each Loan Party certified to be true and complete as of a Note executed recent date by the Borrowers in favor appropriate Governmental Authority of each Lender requesting the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a Notesecretary or assistant secretary of such Loan Party to be true and correct as of the Closing Date;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectformation;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx LLP, in-house counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)Lender;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower Company certifying (A) that the conditions specified that, except as described in clauses (a)any subsequent Form 10-Q or Form 8-K filing, (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto ; and (FB) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;current Debt Ratings; and
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have Existing Credit Agreement has been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of or concurrently with the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersis being terminated.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to 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 Company and the Administrative Agent). Without limiting the generality of the provisions of Section 10.04, for purposes of determining compliance with the conditions specified in this Section 5.01, 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Cabot Corp), Credit Agreement (Cabot Corp)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (or, in the case of the Initial Designated Borrower, an officer of the Initial Designated Borrower authorized to represent the Initial Designated Borrower, as evidenced by a recent extract from the Dutch Trade Register or otherwise), 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 AgentAgent and each of the Lenders:
(i) executed counterparts of (i) this Agreement executed by each Borrower and (ii) the Guaranty Agreement executed by each Borrower and each Material Domestic Subsidiary as of the Closing Date, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerCompany;
(ii) a Note Notes executed by the Borrowers in favor of each Lender requesting a NoteNotes;
(iii) such certificates of or resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(v) a favorable opinion of each of (i) Xxxxxx & Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, U.S. counsel to the Loan Parties, and Cravath(ii) Xxxxxxx X. Xxxxxx, Swaine & Xxxxx LLPAssistant General Counsel of the Company, in each case addressed to the Administrative Agent and each Lender, in form and substance acceptable to the Administrative Agent and each Lender;
(vi) a favorable opinion of NautaDutilh, Dutch counsel to the Loan Parties, in each caseAdministrative Agent, addressed to the Administrative Agent and each Lender Lender, in form and as substance acceptable to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)each Lender;
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effectso required;
(viii) a certificate from the chief financial officer signed by a Responsible Officer of the Lead Borrower, satisfactory Company certifying (A) that the conditions specified in form Sections 4.02(a) and substance to (b) have been satisfied and (B) that there has been no event or circumstance since the Administrative Agent, attesting to the Solvency date of the Loan Parties on Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a consolidated basis as of the Closing Date after giving effect to the transactions contemplated herebyMaterial Adverse Effect;
(ix) a copy of each of (i) the Security Documents2006 Note Purchase Agreement and (ii) Amendment No. 1 to the 2003 Note Purchase Agreement, in each case duly executed by each party thereto and in form and substance satisfactory to the applicable Loan Parties;Administrative Agent and each Lender; and
(x) all such other Loan Documentsassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties; and
(xi) all documents and instrumentsAdministrative Agent, including Uniform Commercial Code financing statementsthe L/C Issuer, required by law the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to 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 Company and the Administrative Agent). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in 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 Administrative Agent shall have received written notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Watts Water Technologies Inc), Credit Agreement (Watts Water Technologies Inc)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 Agent and each of the Administrative AgentLenders:
(i) executed counterparts of this Agreement Agreement, all Collateral Documents and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note Notes executed by the Borrowers Borrower in favor of each Lender requesting a Notesuch Notes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel Parties acceptable to the Loan Parties, in each case, Agent addressed to the Administrative Agent and each Lender and Lender, as to such the matters set forth concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect in form and substance acceptable to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis duly completed Compliance Certificate as of the Closing Date after giving effect last day of the fiscal quarter of Borrower most recently ended prior to the transactions contemplated herebyClosing Date, signed by a Responsible Officer of Borrower;
(ix) a forecast for the Security DocumentsBorrower’s fiscal year ending May 31, each duly executed by 2009, in the applicable Loan Parties;same format as required for the 2010 fiscal year forecast, all as described in Section 6.01(c); and
(x) all such other Loan Documentsassurances, each duly executed by certificates, documents, consents or opinions as Agent, the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law L/C Issuer or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Agent, Borrower shall have paid the reasonable fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by 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 Borrower and Agent). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in 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 Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Mistras Group, Inc.), Credit Agreement (Mistras Group, Inc.)
Conditions of Initial Credit Extension. The obligation of the LC each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The With respect to the initial Credit Extensions under the U.S. Sub-facility, the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (or, in the case of a Loan Party incorporated under the Laws of Australia, by two directors, a director and a secretary, or an attorney appointed by such 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 each Agent and each of the Administrative AgentLenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative each Agent, each Lender and the Lead BorrowerCompany and executed counterparts of each other Loan Document (other than the Loan Documents referred to in clause (b), below), sufficient in number for distribution to each Agent and the Company;
(ii) a Note Notes executed by the Borrowers Company in favor of each U.S. Sub-facility Lender requesting a NoteNotes in the form of Exhibit C-1 and Exhibit C-2;
(iiiA) in the case of a Loan Party organized under the Laws of any jurisdiction other than Australia, such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is party, and (B) in the case of a Loan Party organized under the Laws of Australia, a certificate in relation to be the Loan Party given by a partydirector of the Loan Party substantially in the form of Exhibit K attached hereto, including all necessary attachments, dated not earlier than seven (7) days before the Closing Date;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party of the Company, the Australian Borrower and each Subsidiary Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable an opinion of each of Xxxxxx & Xxxxxx LLPXxxxx Day, counsel to the Company and certain Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative each Agent and each Lender and Lender, as to the matters set forth in Exhibit J and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) an opinion of special Kentucky counsel to the Company and certain Loan Parties reasonably satisfactory to the Administrative Agent, addressed to each Agent and each Lender, as to the matters set forth in Exhibit J and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(vii) an opinion of special Michigan counsel to the Company and certain Loan Parties reasonably satisfactory to the Administrative Agent, addressed to each Agent and each Lender, as to the matters set forth in Exhibit J and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viii) opinion of Allens Xxxxxx Xxxxxxxx, counsel to the Agents, addressed to the Agents and each Lender, as to the matters set forth in Exhibit J and such other matters concerning the parties to the documents referred to in clauses (i), (iii) and (iv), above, and those documents as the Required Lenders may reasonably request;
(ix) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(x) a certificate signed by a Responsible Officer of the Lead Borrower Company certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2the date of the Audited Financial Statements, 2015with respect to the Company and its Subsidiaries, or since June 30, 2007, with respect to the Australian Borrower and its Subsidiaries that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, ; and (C) either that (1) no consentsa calculation of the Consolidated Leverage Ratio as of September 30, licenses or approvals are required in connection with 2007 on a pro forma basis adjusted to give effect to the execution, delivery and performance by such Loan Party consummation of the Acquisition and the validity against financings contemplated hereby as if such Loan Party transactions had occurred on such date;
(xi) a duly completed Compliance Certificate as of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization last day of the Lead Borrower fiscal quarter of the Company ended on September 30, 2007, on a pro forma basis adjusted to give effect to the consummation of the Acquisition and the financings contemplated hereby as if such transactions had occurred on such date, signed by a Responsible Officer of the Company;
(xii) a pro forma consolidated balance sheet, income statement and cash flow statement of the Company and its Subsidiaries from as of September 30, 2007, adjusted to give effect to the Initial Cap Table, (E) that executed copies consummation of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, Acquisition and the senior credit facilities of the B&N Parties have closed financings contemplated hereby as if such transactions had occurred on or substantially simultaneously such date, consistent in all material respects with the Closing Datesources and uses of cash as previously described to the Administrative Agent and the forecasts previously provided to the Administrative Agent;
(viixiii) Subordination Agreements with respect to all Subordinated Debt, if any;
(xiv) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect, together with endorsements naming the applicable Agent, on behalf of the applicable Lenders, as an additional insured or loss payee, as the case may be, under all such insurance policies;
(viiixv) a certificate from evidence that the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of Existing Credit Agreement has been or concurrently with the Closing Date after giving effect to is being terminated and all Liens securing obligations under the transactions contemplated herebyExisting Credit Agreement have been or concurrently with the Closing Date are being released;
(ixxvi) the Security Documents, each duly a perfection certificate completed and executed by the Company with respect to each Loan Party and all documents and instruments required to perfect each applicable Loan PartiesAgent’s security interest in the Collateral (including title documents and signed blank transfer forms);
(xxvii) certified copies of tax, judgment and Uniform Commercial Code search reports in each relevant jurisdiction dated a date reasonably near to the Closing Date, listing all effective financing statements which name any Loan Party (under their present names and any previous names) as debtors, together with (a) copies of such financing statements, (b) payoff letters evidencing repayment in full of all Indebtedness to be repaid, the termination of all agreements relating thereto and the release of all Liens granted in connection therewith, with Uniform Commercial Code or other Loan Documents, each duly executed appropriate termination statements and documents effective to evidence the foregoing (other than Liens permitted by Section 7.01) and (c) such other Uniform Commercial Code termination statements as the Administrative Agent may reasonably request;
(xviii) any landlord waivers and access letters reasonably requested by the applicable Loan Parties; andAdministrative Agent with respect to real property interests of the Company and its Subsidiaries;
(xixix) all documents and instruments, each document (including Uniform Commercial Code financing statements, ) required by the Loan Documents or under law or reasonably requested by the Collateral either Agent and the Arrangers to be filed, registered or recorded in order to create or perfect in favor of such Agent, for the first priority benefit of the applicable Lenders, a perfected Lien on the collateral described therein, prior to any other Liens intended (subject only to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recordedLiens permitted pursuant to Section 7.01), in each caseproper form for filing, to the reasonable satisfaction registration or recording with all filing and recording fees and taxes duly paid;
(xx) consolidated audited financial statements of the Collateral Agent Australian Borrower and its Subsidiaries for the Arrangersfiscal years ended June 30, 2005, June 30, 2006, and June 30, 2007, and consolidated unaudited financial statements of the Australian Borrower for the three months ended September 30, 2007;
(xxi) evidence that the Acquisition has closed or will close simultaneously on the Closing Date; and
(xxii) such other assurances, certificates, documents, consents or opinions as the Agents, the L/C Issuers, the Swing Line Lender or the Required Lenders reasonably may require.
(b) Not less With respect to the initial Credit Extensions under the Australian Sub-facility, the Australian Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by two directors, a director and a secretary, or an attorney appointed by 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 each Agent and each of the Lenders:
(i) Notes executed by the Australian Borrower in favor of each Australian Sub-facility Lender requesting Notes in the form of Exhibit C-3;
(ii) a duly executed counterpart of an accession deed to the Australian Deed of Guarantee and Indemnity executed by each of Magnus Donners Pty Limited, Collotype International Holdings Pty Limited, Collotype Labels Pty Limited, Collotype iPack Pty Limited, Barossa Printmasters Pty Limited, Ever-Redi Press Pty Limited, Collotype Labels International Pty Limited, Collotype BSM Pty Limited, Colourcraft Labels Pty Limited and Nationwide Labels Pty Limited in the form of the annexure to the Australian Deed of Guarantee and Indemnity;
(iii) a duly executed counterpart of a deed of charge executed by each of Magnus Donners Pty Limited, Collotype Labels Pty Limited, Collotype iPack Pty Limited and Ever-Redi Press Pty Limited in favor of the Australian Administrative Agent in its own capacity and as agent for the Australian Sub-facility Lenders substantially in the form of the deed of charge referred to in clause (f) of the definition of Australian Security Documents;
(iv) a duly executed counterpart of a share mortgage executed by Collotype Labels International Pty Limited in favor of the Australian Administrative Agent in its own capacity and as agent for the Australian Sub-facility Lenders in respect of the entire share capital in Collotype Labels International (RSA) Pty Limited in form and substance satisfactory to the Australian Administrative Agent;
(v) a certificate given by a director of each of each of Magnus Donners Pty Limited, Collotype International Holdings Pty Limited, Collotype Labels Pty Limited, Collotype iPack Pty Limited, Barossa Printmasters Pty Limited, Ever-Redi Press Pty Limited, Collotype Labels International Pty Limited, Collotype BSM Pty Limited, Colourcraft Labels Pty Limited and Nationwide Labels Pty Limited substantially in the form of Exhibit K with the attachments referred to and dated not earlier than $100,000,000 the later of the date of completion of the Acquisition and the date which is seven (7) days before the date of the documents referred to in Aggregate Commitments clauses (i) to (iv), above;
(vi) evidence that the documents referred to in clauses (iii) and (iv), above, have been provisionally registered by the Australian Securities and Investments Commission or the Australian Administrative Agent or its counsel has been provided all necessary documents and funds required by them to attend to that registration;
(vii) if any of the document referred to in clauses (iii) and (iv), above, is dutiable, evidence that it has been duly stamped or the Australian Administrative Agent or its counsel has been provided the funds required by them to attend to that stamping; and
(viii) an opinion of Allens Xxxxxx Xxxxxxxx, counsel to the Agents, addressed to the Agents and each Lender, as to the matters set forth in Exhibit J and such other matters concerning the parties to the documents referred to in clauses (i) to (iv), above, and those documents as the Required Lenders may reasonably request.
(c) Any fees required to be paid on or before the Closing Date shall have been paid.
(d) Unless waived by the applicable Agent or the Arranger, as the case may be, the Company shall have paid all fees, charges and disbursements of counsel to such Agent or the Arranger (directly to such counsel if requested by such Agent or the Arranger) 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 Company and such Agent or the Arranger).
(e) The Closing Date shall have occurred on or before March 31, 2008.
(f) The Agents shall have completed a due diligence investigation of the Australian Borrower and its Subsidiaries in scope, and with results, satisfactory to the Agents and shall have been given such access to the management, records, books of account, contracts and properties of the Australian Borrower and its Subsidiaries.
(g) The Agents shall be satisfied that no changes or developments shall have occurred, and no new or additional information, shall have been received or discovered by the Agents or the Lenders regarding the Borrowers or their Subsidiaries or the transactions contemplated hereby after December 7, 2007 that (A) either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or (B) could reasonably be expected to adversely affect the Facilities or any other aspect of the transactions contemplated hereby, and nothing shall have come to the attention of the Lenders to lead them to believe that (x) the Confidential Information Memorandum dated December 2007 was or has become misleading, incorrect or incomplete in any material respect or (y) the transactions contemplated hereby will have a Material Adverse Effect.
(h) There shall not be any action, suit, investigation or proceeding pending or, to the knowledge of any Borrower, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect. 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 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (MULTI COLOR Corp), Credit Agreement (Multi Color Corp)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(iiA) a Committed Loan Note executed by the Borrowers in favor of each Lender requesting a Committed Loan Note, and (B) a Swing Line Loan Note executed by the Borrowers in favor of Xxxxx Fargo Retail Finance, LLC;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, existing and in good standing under the Laws of the jurisdiction of its incorporation or organization, and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx Xxxxx & Xxxxxx LLPXxxxxxx LLP and Xxxxxxxxx Xxxxxxxx Xxxxxxxx Marks & Xxxxxxx, Chtd., counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) Sections 4.01 and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, and (D) there have not been any material change in to the capital structure and capitalization Solvency of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies Loan Parties on a Consolidated basis as of the Spin-Off Agreements are attached thereto and (F) that Closing Date after giving effect to the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Datetransactions contemplated hereby;
(vii) a duly completed Compliance Certificate as of the last day of the Fiscal Month of the Parent and its Subsidiaries most recently ended prior to the Closing Date, signed by a Responsible Officer of the Lead Borrower;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viiiix) a payoff letter from the lenders under the Existing Credit Agreement satisfactory in form and substance to the Administrative Agent evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations and other indebtedness thereunder are being paid in full, and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(x) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ixxi) the Security DocumentsDocuments and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank (other than the certificate and stock powers being delivered pursuant to Section 6.22), each duly executed by the applicable Loan Parties;
(xxii) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xixiii) the Disbursement Letter, duly executed by each of the parties thereto;
(xiv) (A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Collateral Agent of all Inventory of the Borrowers, the results of which are satisfactory to the Collateral Agent and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory to the Collateral Agent;
(xv) results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each case dated as of a date reasonably satisfactory to the Collateral Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, and releases or subordination agreements satisfactory to the Collateral Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Collateral Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(xvi) (A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent Agent, (B) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, and (C) control agreements with respect to the ArrangersLoan Parties’ securities and investment accounts;
(xvii) Collateral Access Agreement, as required by the Collateral Agent; and
(xviii) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) Not After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to such establishment, Availability shall be not less than $100,000,000 40,000,000.
(c) The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on January 31, 2009, and executed by a Responsible Officer of the Lead Borrower.
(d) The Administrative Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the most recent financial information delivered to the Administrative Agent.
(e) The Administrative Agent shall have received and be satisfied with (i) a detailed business plan and forecast for the period commencing on the Closing Date and ending with the end of such Fiscal Year, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow, by quarter, each prepared in Aggregate Commitments conformity with GAAP and consistent with the Loan Parties’ then current practices and (b) such other information (financial or otherwise) reasonably requested by the Administrative Agent.
(f) There shall not be pending any litigation or other proceeding, the result of which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(g) There shall not have occurred any default of any Material Contract of any Loan Party which could reasonably be expected to have a Material Adverse Effect.
(h) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(i) All fees and expenses required to be paid to the Agents on or before the Closing Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to 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 Borrowers and the Administrative Agent).
(k) The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act, and shall be satisfied that the Loan Parties are in compliance with all Laws.
(l) No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) There shall not have occurred any disruption or material adverse change in the United States financial or capital markets in general that has had, in the reasonable opinion of the Administrative Agent, a material adverse effect on the market for loan syndications or adversely affecting the syndication of the Loans.
(n) Each Lender shall have received final credit approval to enter into the Agreement and the other Loan Documents (to which it is a party) and for its applicable Commitment, and to perform its obligations thereunder.
(o) The Agents shall have completed, and be satisfied with, its corporate and legal due-diligence of each Loan Party (including, but not limited to solvency), its examination of the Collateral, the Stores and distribution centers of the Loan Parties, and the capital structure of the Loan Parties. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Coldwater Creek Inc), Credit Agreement (Coldwater Creek Inc)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, the Guaranty, the Security Agreement, the Pledge Agreement, each Mortgage Property Support Document and each other Collateral Document, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers each Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx Block & Xxxxxx Garden, LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and as to such matters concerning Lender, substantially in the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens form set forth in favor of the Collateral Agent)Exhibit I;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) evidence a certificate signed by a Responsible Officer of Holdings certifying (A) that all insurance required to be maintained pursuant to the Loan Documents conditions specified in Sections 4.02(a) and all endorsements in favor of the Collateral Agent required under the Loan Documents (b) have been obtained satisfied, and are (B) that there has been no event or circumstance since June 30, 2012, that has had or could be reasonably expected to have, either individually or in effectthe aggregate, a Material Adverse Effect;
(viii) searches of UCC filings in the jurisdiction of incorporation or formation, as applicable, of each Loan Party and each jurisdiction where any Collateral is located or where a certificate filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens;
(ix) completed UCC financing statements for each appropriate jurisdiction as is necessary, in the Administrative Agent’s sole discretion, to perfect the Administrative Agent’s security interest in the Collateral;
(x) stock or membership certificates, if any, evidencing the Equity Interests pledged pursuant to the Collateral Documents and undated stock or transfer powers duly executed in blank; in each case to the extent such Equity Interests are certificated;
(xi) in the case of any personal property Collateral located at premises leased by a Loan Party and set forth on Schedule 4.01(a)(xi), such estoppel letters, consents and waivers from the landlords of such real property (such letters, consents and waivers shall be in form and substance satisfactory to the Administrative Agent); provided, however, that if the Borrowers fail to obtain any landlord waiver or other consent or document requested of any third party, then the requirements of this clause (xi) shall be deemed to be satisfied if the Borrowers used commercially reasonable efforts to obtain the same but were unable to do so;
(xii) all Mortgaged Property Support Documents with respect to each Mortgaged Property, in form and substance satisfactory to the Administrative Agent and the Lenders;
(xiii) copies of insurance policies, declaration pages, certificates, and endorsements of insurance or insurance binders evidencing liability, casualty, property, terrorism and business interruption insurance meeting the requirements set forth herein or in the Collateral Documents or as required by the Administrative Agent, including, without limitation, (i) standard flood hazard determination forms and (ii) if any property is located in a special flood hazard area (A) notices to (and confirmations of receipt by) such Loan Party as to the existence of a special flood hazard and, if applicable, the unavailability of flood hazard insurance under the National Flood Insurance Program and (B) evidence of applicable flood insurance, if available, in each case in such form, on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994 or as otherwise required by the Administrative Agent;
(xiv) a Solvency Certificate signed by the chief financial officer of the Lead Borrowereach of Holdings, satisfactory in form each Borrower and substance to the Administrative Agent, attesting each Guarantor as to the Solvency and related matters of each Borrower, individually, and of each Guarantor, taken together with the Loan Parties on a consolidated basis as of the Closing Date Borrowers and all Guarantors, after giving effect to the initial borrowings under the Loan Documents and the other transactions contemplated hereby;
(ixxv) evidence that the Security DocumentsSeller Notes and all other existing indebtedness for borrowed money of Holdings and its Subsidiaries (other than Indebtedness permitted under this Agreement), each duly executed by and all obligations in respect of the applicable Loan PartiesSeller Notes, have been or concurrently with the Closing Date are being terminated and all Liens securing obligations thereunder have been or concurrently with the Closing Date are being released or (B) to the extent any of the Seller Notes are not paid in full concurrently with the Closing Date, such continuing Seller Notes are on terms and conditions, and are subject to subordination provisions, satisfactory to the Administrative Agent and the Lenders;
(xxvi) all other Loan Documents, each duly executed evidence that the Indebtedness owed by the Company to Wxxxx Fargo Bank, National Association in the amount equal to approximately $1,200,000 has been or concurrently with the Closing Date is being repaid in full and all Liens securing obligations thereunder have been or concurrently with the Closing Date are being released;
(xvii) the Administrative Agent and each Lender shall have received all documentation and other information requested by the Administrative Agent or such Lender, as applicable, in order to comply with its obligations under applicable Loan Parties“know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law on October 26, 2001)); and
(xixviii) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (including any local counsel) (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 Borrowers and the Administrative Agent). 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 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Tile Shop Holdings, Inc.), Credit Agreement (Tile Shop Holdings, Inc.)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxx Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower Borrower, satisfactory in form and substance to the Administrative Agent, certifying (A) that the conditions specified in clauses (a), (bSections 4.02(a) and (c4.02(b) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, the date of the Audited Financial Statements that has had had, or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party Party, and the validity against such Loan Party Party, of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, effect and (D) there have not been any material change in to the capital structure and capitalization Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby;
(vii) a duly completed Compliance Certificate as of the last day of the Fiscal Quarter of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with most recently ended prior to the Closing Date, signed by a Responsible Officer of the Lead Borrower;
(viiviii) a Borrowing Base Certificate dated the Closing Date, relating to the month ended on March 31, 2008, and executed by a Responsible Officer of the Lead Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viiix) a certificate payoff letter from the chief financial officer of agent for the Lead Borrower, lenders under the Existing Revolving Credit Loan Agreement satisfactory in form and substance to the Administrative Agent, attesting to Agent evidencing that the Solvency of the Existing Revolving Credit Loan Parties on a consolidated basis as of Agreement has been or concurrently with the Closing Date after giving effect to is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the transactions contemplated herebyExisting Revolving Credit Loan Agreement have been or concurrently with the Closing Date are being released;
(ixxi) a payoff letter from the administrative agent for the lenders under the Existing Term Loan Agreement satisfactory in form and substance to the Administrative Agent evidencing that the Existing Term Loan Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the Existing Term Loan Agreement have been or concurrently with the Closing Date are being released;
(xii) the Security DocumentsDocuments and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(xxiii) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xixiv) results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each case dated as of a date reasonably satisfactory to the Collateral Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, and releases or subordination agreements satisfactory to the Collateral Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Collateral Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by law Law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent and (B) the ArrangersCredit Card Notifications and Blocked Account Agreements required pursuant to Section 6.13 hereof; and
(xvi) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) Not less than $100,000,000 in Aggregate Commitments The Administrative Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the most recent financial information delivered to the Administrative Agent.
(c) The Administrative Agent shall have received and be satisfied with such other information (financial or otherwise) reasonably requested by the Administrative Agent.
(d) All necessary consents and approvals to the transactions contemplated hereby shall have been received from Lenders obtained and shall be reasonably satisfactory to the Administrative Agent, other than those which, individually or in the Lead aggregate, would not have, and would not reasonably be expected to have, a Material Adverse Effect.
(e) There shall not be pending any litigation or other proceeding, the result of which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(f) After giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder), no Default or Event of Default shall exist.
(g) There shall not have occurred any default of any Material Contract of any Loan Party which could reasonably be expected to have a Material Adverse Effect.
(h) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(i) All fees required to be paid to the Agents on or before the Closing Date shall have been paid in full, and all fees required to be paid to the Lenders executing on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all fees, charges and disbursements of counsel to 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 Borrowers and the Administrative Agent).
(k) No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(1) There shall not have occurred any disruption or material adverse change in the United States financial or capital markets in general that has had, in the reasonable opinion of the Administrative Agent, a material adverse effect on the market for loan syndications or adversely affecting the syndication of the Loans. Without limiting the generality of the provisions of Section 9.04. for purposes of determining compliance with the conditions specified in this AgreementSection 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 Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Samples: Credit Agreement (Rue21, Inc.), Credit Agreement (Rue21, Inc.)
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt Agent shall have received all of the following, each of which shall be originals or telecopies (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 this Agreement sufficient in number for distribution to executed by the Administrative AgentBorrower, the Guarantor and each Lender and the Lead BorrowerLender;
(ii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) counterparts of the Guaranty executed by the Guarantor;
(iv) such certificates certificate of resolutions or other action, incumbency certificates certificate and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(ivv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is and the General Partners are duly organized or formed, and that each Loan Party and each General Partner is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectformation;
(vvi) a favorable opinion of each of (A) Xxxxxx & Xxxxxx Xxxxxxx LLP, counsel to each Loan Party and the Loan PartiesGeneral Partners, and Cravath(B) the Vice President, Swaine & Xxxxx LLP, counsel to General Counsel and Secretary of the Loan PartiesMLP General Partner, in each casecase in form and substance satisfactory to Administrative Agent and the Lenders, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)Lender;
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party, (A) either (i) certifying that the conditions specified in clauses (a), (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, or (Dii) there have not been any material change stating that no such consents, licenses or approvals are so required; and (B) certifying as to the matters set forth in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tableclauses (A), (EB) that executed copies of the Spin-Off Agreements are attached thereto and (FC) below;
(A) the representations and warranties of each Loan Party set forth in this Agreement shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed extent that any such representation or warranty is qualified by materiality) on or substantially simultaneously with the Closing Date, both before and after giving effect to any Credit Extension being made on such date;
(viiB) evidence that all insurance required no Default shall exist on the Closing Date, before and after giving effect to be maintained pursuant to the any Credit Extension being made on such date; and
(C) there does not exist any pending or threatened (i) proceeding under any Debtor Relief Law in respect of any Loan Documents and all endorsements Party or any Subsidiary, or (ii) litigation or other proceeding in favor respect of the Collateral Agent required under initial Credit Extension or that could be reasonably expected to have, either individually or in the Loan Documents have been obtained and are in effectaggregate, a Material Adverse Effect;
(viii) a certificate from evidence that (A) all Loans under and as defined in the chief financial officer Borrower Existing Credit Agreement shall have been or shall concurrently be repaid in full or refinanced with Loans under this Agreement, together with accrued interest thereon and any accrued fees due, and the commitments of the Lead Borrowerlenders thereunder shall have been or shall concurrently be terminated, satisfactory (B) all Loans under and as defined in form the Sunoco Partners Marketing Existing Credit Agreement shall have been or shall concurrently be repaid in full, together with accrued interest thereon and substance to any accrued fees due, and the Administrative Agent, attesting to the Solvency commitments of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;lenders thereunder shall have been or shall concurrently be terminated; and
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the ArrangersInitial Financial Statements.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to 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). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has executed and delivered this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specifiedor electronic facsimiles, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement sufficient in number for distribution to Agreement, the Administrative Agent, each Lender Parent Guaranty and the Lead BorrowerOpco Guaranty;
(ii) a Note executed by the Borrowers each Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party and each of its Subsidiaries is duly organized or formed, formed and that each Loan Party is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(v) a favorable opinion of each of Xxxxxx Bxxxxxxxx & Xxxxxx Gxxxxxxx LLP, counsel to the Loan Parties, a favorable opinion of the General Counsel of the General Partner, and Cravath, Swaine & Xxxxx LLP, a favorable opinion of special Colorado counsel to the Loan PartiesWIC, in each case, addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit G-1, G-2 and G-3 respectively and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate of a Responsible Officer of the MLP either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Loan Parties and the validity against the Loan Parties of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Lead Borrower MLP certifying that (A) that the conditions specified in clauses (a), (b) both before and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of MLP Offering Closing, the transactions contemplated under this Agreement Initial Asset Acquisition and the other Loan Documents Borrowing on the Closing Date Date, (including a) the representations and warranties of the MLP and the Borrowers contained in Article V or any Loans made or Letters other Loan Document are true and correct in all material respects on and as of Credit issued hereunder))such date, and (b) no Default exists, and (B) that there has been no event or circumstance since May 2December 31, 2015, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, (a) a Material Adverse Effectmaterial adverse change in, or a material adverse effect on, the operations, business, assets, properties, liabilities (C) either that (1) no consentsactual or contingent), licenses or approvals are required financial condition of the businesses acquired by the MLP in connection with the executionInitial Asset Acquisition taken as a whole, delivery or the MLP and performance by such any of its Subsidiaries, taken as a whole; (b) a material impairment of the rights and remedies of the Administrative Agent or any Lender under any Loan Document, or of the ability of any Loan Party and the validity against such to perform its obligations under any Loan Party of the Loan Documents Document to which it is a party, ; or (2c) that all such consentsa material adverse effect upon the legality, licenses and approvals have been obtained and are in full force and effectvalidity, (D) there have not been binding effect or enforceability against any material change in the capital structure and capitalization Loan Party of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required any Loan Document to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effectwhich it is a party;
(viii) a certificate from the chief financial officer signed by a Responsible Officer of the Lead BorrowerMLP certifying that (A) the MLP Offering Closing has been, satisfactory or substantially concurrently with delivery of such certificate is being, consummated on the Closing Date on the terms described in form the MLP Registration Statement and substance in compliance with applicable Laws; and (B) the Initial Asset Acquisition has been, or substantially concurrently with delivery of such certificate is being, consummated on the Closing Date on the terms described in the MLP Registration Statement and in compliance with applicable Laws and that after giving effect thereto, the MLP and its Restricted Subsidiaries shall own the Acquired Assets free and clear of all Liens other than Permitted Liens;
(ix) a certificate signed by a Responsible Officer of the MLP (A) attaching a calculation of the pro forma Leverage Ratio of the MLP as of September 30, 2007 after giving effect to the Administrative AgentInitial Asset Acquisition and the Credit Extensions on the Closing Date, attesting to (B) certifying that the Solvency of the Loan Parties on a consolidated basis Available Amount as of the Closing Date after giving effect is not less than $40,000,000, and attaching a calculation of such amount; and (C) certifying as to the transactions contemplated hereby;
(ix) the Security Documentscurrent Debt Ratings, each duly executed by the applicable Loan Parties;if any; and
(x) all such other Loan Documentsassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties; and
(xi) all documents and instrumentsAdministrative Agent, including Uniform Commercial Code financing statementsthe L/C Issuer, required by law the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees invoiced at least one Business Day before the Closing Date and required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, 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 Borrowers and the Administrative Agent). 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 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies other electronic image scan transmission (e.g., “pdf” or “tif ” via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement each properly executed by a Responsible Officer of the signing Loan Party and the Lenders sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a party;
(iviii) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing standing, and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(viv) a favorable opinion of each of Xxxxxx & Xxxxxx McGuireWoods LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(viv) a certificate signed by of a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) Sections 4.01 and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse EffectEffect (it being understood that all litigation filed against the Loan Parties or their Affiliates with respect to the subject of the March 1, 2015 60 Minutes report on the Lead Borrower and its business (and any subsequent media reports with respect to the subject of such 60 Minutes report) shall not, to the extent disclosed to the Agent in writing on or before March 27, 2015, be deemed violative of this condition precedent), (C) to the Solvency of the Loan Parties as of the Effective Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(viivi) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ixvii) the Security Documents, each duly executed by the applicable Loan Parties;
(xviii) all other Loan DocumentsDocuments set forth on Schedule 4.01(a)(viii) hereto, each duly executed by the applicable Loan Parties; and;
(xiix) results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements satisfactory to the Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Agent for the delivery of such termination statements have been made;
(x) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents Documents;
(1) with respect to the Borrower’s Toano, Virginia offices, distribution center and all such documents and instruments plant, a Collateral Access Agreement shall have been so filedobtained and delivered to the Agent and (2) with respect to the Pomona, registered or recordedCalifornia distribution facility, either a Collateral Access Agreement shall have been obtained and delivered to the Agent or, in each caselieu thereof, Agent shall (to the reasonable satisfaction of extent it determines to do so in its sole discretion) establish and maintain an Availability Reserve equal to three (3) months’ rent for such location; and
(xii) such other assurances, certificates, documents, consents or opinions as the Collateral Agent and the Arrangersreasonably may require.
(b) Not After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account on the Effective Date as required by the Loan Documents and (iii) all Letters of Credit to be issued at, or immediately subsequent to, the Effective Date, Availability shall be not less than $100,000,000 in Aggregate Commitments 75,000,000.
(c) The Agent shall have been received from Lenders other than a Borrowing Base Certificate dated the Effective Date, relating to the Fiscal Quarter ended on March 31, 2015, and executed by a Responsible Officer of the Lead Lenders executing this AgreementBorrower.
Appears in 1 contract
Samples: Credit Agreement (Lumber Liquidators Holdings, Inc.)
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent and the Arrangers may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent and the Arrangers may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx (i) Dxxxx Xxxx & Xxxxxx Wxxxxxxx LLP, counsel to the Loan Parties, Parties and Cravath, Swaine & Xxxxx LLP, (ii) such local counsel to the Loan Parties, in each case, case addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent and the Arrangers may reasonably request (including, without limitation, with respect to enforceability, due authorization and authorization, perfection of the Liens in favor of the Collateral AgentAgent and absence of conflicts with specified material agreements);
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, Effect and (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and and, except for the endorsements specified on Schedule 4.01(a) hereto which shall be delivered no later than 15 days after the Closing Date, all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a payoff letter from (A) Bank of America, N.A., as agent for the lenders under the Existing Credit Agreement and (B) Bank of America. N.A., as agents for the lenders under the Existing BCNB Credit Agreement, in each case satisfactory in form and substance to the Administrative Agent evidencing that each such credit facility has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations thereunder have been or concurrently with the Closing Date are being released;
(ix) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated Consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ixx) except for the Securities Account Control Agreements specified on Schedule 4.01(b) hereto, which shall be duly executed and delivered no later than 15 days after the Closing Date, the Security DocumentsDocuments (other than the Mortgages), each duly executed by the applicable Loan PartiesParties (it being understood that no Mortgages will be executed and delivered as of the Closing Date);
(xxi) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xixii) results of searches or other evidence reasonably satisfactory to the Collateral Agent and the Arrangers (in each case dated as of a date reasonably satisfactory to the Collateral Agent and the Arrangers) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, and releases or subordination agreements satisfactory to the Collateral Agent and the Arrangers are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Collateral Agent and the Arrangers for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers, (B) the Blocked Account Agreements required pursuant to Section 6.13 hereof, and (C) control agreements with respect to the Loan Parties’ securities and investment accounts;
(xiv) certified copies of each of the BNCB Acquisition Documents, including the Seller Notes, as amended and in effect on the Closing Date, duly executed by the parties thereto and in form and substance substantially the same as the form and substance of such agreements and documents dated August __, 2009 delivered to and approved by the Administrative Agent, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall request; and
(xv) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) Not The BNCB Acquisition shall have been consummated in accordance with the BNCB Acquisition Documents and in compliance with all applicable Laws and regulatory rules of any Governmental Authority.
(c) After giving effect to (i) the consummation of the BNCB Acquisition, (ii) the first funding under the Loans, (iii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iv) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement400,000,000.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies (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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Revolving Loan Note executed by the Borrowers Borrower in favor of each Lender requesting a Revolving Loan Note;
(iii) the Swing Line Note executed by the Borrower in favor of the Swing Line Lender;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(ivv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vvi) a favorable opinion of each of Xxxxxx Xxxxx & Xxxxxx LLPXxXxxxxx, counsel to the Loan Parties, Xxxxxx Xxxxxxx & Xxxxxx, special Barbados counsel for HOT-Barbados, and CravathXxxxxxx, Swaine Xxxx & Xxxxx LLPXxxxxxx, special Bermuda counsel to the Loan Partiesfor Limited, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effectso required;
(viii) a certificate from signed by a Responsible Officer of Limited certifying (A) that the chief financial officer conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Lead BorrowerAudited Financial Statements that has had or could be reasonably expected to have, satisfactory either individually or in form the aggregate, a Material Adverse Effect; and substance to the Administrative Agent, attesting to the Solvency (C) a calculation of the Loan Parties on a consolidated basis Leverage Ratio as of the Closing Date after giving effect last day of the fiscal quarter of Limited most recently ended prior to the transactions contemplated herebyClosing Date;
(ix) evidence that the Security Documents, each duly executed by Existing Credit Agreement has been or concurrently with the applicable Loan PartiesClosing Date is being terminated and obligations thereunder have been or concurrently with the Closing Date are being paid or satisfied in full;
(x) all other evidence satisfactory to the Administrative Agent that the OXO Acquisition shall have been consummated (or shall be consummated simultaneously with the initial Loan Documents, each duly executed by hereunder) pursuant to the applicable Loan Partiesterms of the OXO Acquisition Agreement;
(xi) the Bridge Notes shall have been or concurrently with the Closing Date issued; and
(xixii) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to 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). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Helen of Troy LTD)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date) and each in form and substance satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx Xxxxx Xxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (bSections 4.02(a) and (c4.02(b) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, Effect and (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) a Borrowing Base Certificate dated the Effective Date, relating to the month ended on November 27, 2010, and executed by a Responsible Officer of the Lead Borrower;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viiiix) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Effective Date after giving effect to the transactions contemplated hereby;
(ixx) the Security DocumentsDocuments and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(xxi) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xixii) (A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Collateral Agent of all Inventory of the Borrowers, the results of which are satisfactory to the Collateral Agent and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory to the Collateral Agent;
(xiii) results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each case dated as of a date reasonably satisfactory to the Collateral Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, and releases or subordination agreements satisfactory to the Collateral Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Collateral Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent and (B) the ArrangersCredit Card Notifications and Blocked Account Agreements required pursuant to Section 6.13 hereof; and
(xv) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) Not After giving effect to (i) the funding of the Term Loan and the initial Revolving Loans on the Effective Date, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment (including Existing Letters of Credit), Availability shall be not less than $100,000,000 in Aggregate Commitments 50,000,000.
(c) The Administrative Agent shall have be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been received from Lenders other than the Lead Lenders executing this Agreementno Material Adverse Effect since January 31, 2010.
Appears in 1 contract
Samples: Credit Agreement (Cost Plus Inc/Ca/)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies other electronic image scan transmission (e.g., “pdf” or “tif “ via e-mail) (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 Term Loan Agent:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, the Term Loan Agent, each Lender and the Lead Borrower;
(iiA) a Committed Loan Note executed by the Borrowers in favor of each Revolving Lender requesting a Committed Loan Note, (B) a Swing Line Loan Note executed by the Borrowers in favor of Xxxxx Fargo Bank and (C) a Term Note executed by the Borrowers in favor of each Term Lender requesting a Term Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, existing and in good standing under the Laws of the jurisdiction of its incorporation or organization, and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx Xxxxx Lovells US LLP and Xxxxxxxxx Xxxxxxxx Xxxxxxxx Xxxxx, Xxxxxxx & Xxxxxx LLPXxxxxxxxx, Chtd., counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) Sections 4.01 and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, and (D) there have not been any material change in to the capital structure and capitalization Solvency of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies Loan Parties on a Consolidated basis as of the Spin-Off Agreements are attached thereto and (F) that Closing Date after giving effect to the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Datetransactions contemplated hereby;
(vii) a duly completed Compliance Certificate as of the last day of the Fiscal Month of the Parent and its Subsidiaries most recently ended prior to the Closing Date, signed by a Responsible Officer of the Lead Borrower;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viiiix) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ixx) the Security DocumentsConfirmation Agreement and Mortgages, each duly executed by the applicable Loan Parties;
(xxi) all other Loan DocumentsDocuments (to the extent not executed and delivered in connection with the Existing Credit Agreement), each duly executed by the applicable Loan Parties; and;
(xixii) the Disbursement Letter, duly executed by each of the parties thereto;
(xiii) each of the Real Estate Eligibility Requirements has been satisfied to the Agents’ and the Term Loan Agent’s satisfaction;
(xiv) evidence that all other actions that the Agents may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken;
(xv) an appraisal of each of the properties described in the Mortgages complying with the requirements of FIRREA by a third party appraiser acceptable to the Administrative Agent and the Term Loan Agent and otherwise in form and substance satisfactory to the Administrative Agent and the Term Loan Agent;
(xvi) results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each case dated as of a date reasonably satisfactory to the Collateral Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, and releases or subordination agreements satisfactory to the Collateral Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Collateral Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent Agent, (B) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, and (C) control agreements with respect to the ArrangersLoan Parties’ securities and investment accounts;
(xviii) Collateral Access Agreement, as required by the Collateral Agent; and
(xix) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) Not After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to such establishment, Availability shall be not less than $100,000,000 40,000,000.
(c) The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on April 30, 2011, and executed by a Responsible Officer of the Lead Borrower.
(d) The Administrative Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the most recent financial information delivered to the Administrative Agent.
(e) The Administrative Agent shall have received and be satisfied with (i) a detailed business plan and forecast for the period commencing on the Closing Date and ending with the end of such Fiscal Year, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow, by quarter, each prepared in Aggregate Commitments conformity with GAAP and consistent with the Loan Parties’ then current practices and (b) such other information (financial or otherwise) reasonably requested by the Administrative Agent.
(f) There shall not be pending any litigation or other proceeding, the result of which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(g) There shall not have occurred any default of any Material Contract of any Loan Party which could reasonably be expected to have a Material Adverse Effect.
(h) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(i) All fees and expenses required to be paid to the Agents or the Term Loan Agent on or before the Closing Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent and the Term Loan 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 the Administrative Agents and the Term Loan Agents 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 Borrowers and the Administrative Agent and the Term Loan Agent).
(k) The Administrative Agent, the Term Loan Agent and the Lenders shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act, and shall be satisfied that the Loan Parties are in compliance with all Laws.
(l) No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) There shall not have occurred any disruption or material adverse change in the United States financial or capital markets in general that has had, in the reasonable opinion of the Administrative Agent, a material adverse effect on the market for loan syndications or adversely affecting the syndication of the Loans.
(n) Each Lender shall have received final credit approval to enter into the Agreement and the other Loan Documents (to which it is a party) and for its applicable Commitment and portion of the Term Loan, and to perform its obligations thereunder.
(o) The Agents shall have completed, and be satisfied with, its corporate and legal due-diligence of each Loan Party (including, but not limited to solvency), its examination of the Collateral, the Stores and distribution centers of the Loan Parties, and the capital structure of the Loan Parties. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation effectiveness of the LC Issuer and each Lender to make its initial Credit Extension hereunder this Agreement is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies other electronic image scan transmission (e.g., “pdf” or “tif ” via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Third Restatement Date (or, in the case of certificates of governmental officials, a recent date before the Closing Third Restatement Date) and each in form and substance satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement each properly executed by a Responsible Officer of the signing Loan Party and the Lenders sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx Bass, Bxxxx & Xxxxxx LLPSxxx PLC, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to the Solvency of the Loan Parties as of the Third Restatement Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) ; evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) ; the Security DocumentsDocuments and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(xvii) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xiviii) an updated commercial finance exam, the results of which are satisfactory to the Agent (which commercial finance exam will not be counted toward such commercial finance exam limits in Section 6.10(b));
(ix) results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases or subordination agreements satisfactory to the Agent are being tendered concurrently herewith or other arrangements satisfactory to the Agent for the delivery of such termination statements and releases have been made;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent, (B) the Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.12 hereof shall have been obtained, and (C) control agreements with respect to the Loan Parties’ securities and investment accounts have been obtained; and such other assurances, certificates, documents, consents or opinions as the Agent and the Arrangersreasonably may require.
(b) Not less After giving effect to (i) any Loans outstanding hereunder, (ii) any charges to the Loan Account made in connection herewith and (iii) all Existing Letters of Credit and any other Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be greater than $100,000,000 in Aggregate Commitments 25,000,000 (calculated without giving effect to clause (a) of the Loan Cap).
(c) The Agent shall have been received from Lenders other than a Borrowing Base Certificate dated the Third Restatement Date, relating to the period ended on February 25, 2023, and executed by a Responsible Officer of the Lead Lenders executing this AgreementBorrower.
Appears in 1 contract
Samples: Credit Agreement (Kirkland's, Inc)
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedentprecedent unless otherwise consented to or waived by the Administrative Agent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 AgentAgent and the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) executed counterparts of each of the other Loan Documents;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(ivv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party of the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(vvi) a favorable opinion of each of Xxxxxx & Xxxxxx Xxxxxx, Cutler, Pickering, Xxxx and Xxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender Lender, dated as of the Closing Date in form and as substance satisfactory to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effectso required;
(viii) a certificate from the chief financial officer signed by a Responsible Officer of the Lead BorrowerBorrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, satisfactory in form and substance to (B) that there has been no event or circumstance since the Administrative Agent, attesting to the Solvency date of the Loan Parties on Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;Material Adverse Effect; and
(ix) such other assurances, certificates, documents, consents or opinions as the Security Documents, each duly executed by Administrative Agent or the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, 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).
(d) The Closing Date shall have occurred on or before July 31, 2015. 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 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies other electronic image scan transmission (e.g., “pdf” or “tif ” via e-mail) (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:): 9656966v810314033v12
(i) executed counterparts of this Agreement sufficient in number for distribution to each properly executed by a Responsible Officer of the Administrative Agent, each Lender signing Loan Party and the Lead BorrowerLenders in such number as the Agent may request;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a partyparty and each in form and substance reasonably satisfactory to the Agent;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require request as to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(v) a favorable opinion of each of Xxxxxx Latham & Xxxxxx LLP, counsel Xxxkinx XXX xddressed to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and on the Closing Date, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (includingrequest, without limitation, with respect in form and substance reasonably satisfactory to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) Sections 4.01 and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either to the Solvency of the Loan Parties, on a Consolidated basis, as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) to the knowledge of such Responsible Officer, that (1) no all consents, licenses or approvals are required in connection with the execution, delivery and performance by such the Loan Party and the validity against such Loan Party Parties of the Loan Documents to which it is a they are party, or (2) that all such consentsif any, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure ; and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that true, correct and complete executed copies of each Separation Agreement have been furnished to the Spin-Off Agent, which Separation Agreements are attached thereto in full force and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateeffect;
(vii) evidence reasonably satisfactory to the Agent that all insurance required to be maintained pursuant to the Loan Documents and and, subject to Section 6.11, all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate payoff letter from the chief financial officer of agent under the Lead Borrower, existing revolving credit facility reasonably satisfactory in form and substance to the Administrative AgentAgent evidencing that such loan facility has been terminated, attesting to the Solvency all obligations paid in full, and all Liens securing obligations of the Loan Parties on a consolidated basis as of under such facility have been or concurrently with the Closing Date after giving effect to the transactions contemplated hereby;are being released; 9656966v810314033v12
(ix) subject to Section 6.16, the Security DocumentsDocuments and all other Loan Documents (to the extent to be executed on the Closing Date), each duly executed by the applicable Loan Parties;
(xA) an appraisal (based on net liquidation value) by a third party appraiser acceptable to the Agent of all other Loan Documents, each duly executed by Inventory of the applicable Loan Parties; and, the results of which are satisfactory to the Agent, and (B) a written report regarding the results of commercial finance examinations of the Loan Parties, which shall be reasonably satisfactory to the Agent;
(xi) results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Liens permitted by Section 7.01 and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, in each case satisfactory to the Agent, are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Agent for the delivery of such termination statements have been made;
(A) all documents and instruments, instruments (including Uniform Commercial Code financing statements, required by law or ) reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens (subject to the Intercreditor Agreement) intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent and (B) the ArrangersCredit Card Notifications and Blocked Account Agreements to the extent required pursuant to Section 6.12 hereof shall have been obtained;
(xiii) the Sears Tri-Party Agreement, fully executed by the Agent, the applicable Loan Parties, SHC and certain of its Subsidiaries[reserved];
(xiv) the Intercreditor Agreement Joinder, fully executed by Agent and Term Agent, and acknowledged by the Loan Parties; and
(xv) the Agent shall have received such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.
(b) Not After giving effect to the initial Credit Extensions hereunder, Availability shall be not less than $100,000,000 150,000,000.
(c) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on October 27, 2017, and executed by a Responsible Officer of each Borrower.
(d) [Reserved].
(e) The Agent shall have received and be satisfied with (i) a Borrowing Base Availability analysis prepared on a monthly basis for December 2017, January 2018 and the Fiscal Year 2018, and (ii) a detailed forecast prepared on a monthly basis for December 2017, January 2018 and the Fiscal Year 2018, and on an annual basis thereafter through the Maturity Date, which shall include Consolidated 9656966v810314033v12 income statement, balance sheet, and statement of cash flow, in Aggregate Commitments each case prepared in conformity with GAAP and consistent with the Loan Parties’ then current practices.
(f) [Reserved].
(g) All fees and expenses required to be paid to the Agent or the Arranger on or before the Closing Date shall have been paid in full, and all fees and expenses required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(h) The Borrowers shall have paid all fees, charges and disbursements of counsel to the 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 Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Agent).
(i) The Agent and the Lenders shall have received, at least four (4) Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act requested by the Agent or Lenders seven (7) Business Days prior to the Closing Date. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in 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 Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Lands' End, Inc.)
Conditions of Initial Credit Extension. The obligation of the LC each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies “PDFs” (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (as applicable), 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 AgentAgent and each Lender:
(i) executed counterparts of this Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerCompany;
(ii) a Note Notes executed by each of the Borrowers in favor of each Lender requesting a Notethat has requested Notes at least two (2) Business Days in advance of the Closing Date;
(iii) such certificates of certificates, resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers Officers, secretaries or assistant secretaries (or other individuals performing similar functions) of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Loan Party Parties is validly existing, in good standing or the equivalent thereof (to the extent applicable) and qualified to engage in business in each its jurisdiction where its ownership, lease of incorporation or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;organization,
(v) a favorable opinion of each of Xxxxxx & Xxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, Parties including special counsel to the Loan PartiesParties in the Netherlands, Belgium, Luxembourg and Ireland, in each case, addressed to the Administrative Agent and each Lender (and expressly permitting reliance by successors and assigns of the Administrative Agent and each Lender), as to such the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent or the Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Company ended on June 29, 2013, signed by a Responsible Officer of the Company and demonstrating pro forma compliance with the financial covenants set forth in Section 7.12;
(ix) evidence satisfactory to the Administrative Agent and the Lenders that the amount, terms, types and conditions of all insurance maintained by the Loan Parties are consistent with that required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) a payoff letter evidencing that all obligations (including all principal, interest and other Loan Documentsamounts) under the Prior Credit Agreement have been, each duly executed by or concurrently with the applicable Loan PartiesClosing Date are being, paid in full and terminated and all Liens securing or Guarantees of obligations under the Prior Credit Agreement have been, or concurrently with the Closing Date are being, released; and
(xi) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 There shall not be any actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Company overtly threatened in Aggregate Commitments writing, at law, in equity, in arbitration or before any Governmental Authority, by or against the Borrowers or any of their respective Subsidiaries or against any of their properties or revenues that (i) purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated hereby, or (ii) could reasonably be expected to have a Material Adverse Effect.
(c) The Administrative Agent shall have received at least 5 Business Days prior to the Closing Date all documentation and information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act, to the extent such documentation or information is requested by the Administrative Agent on behalf of the Lenders in writing at least 10 Business Days prior to the Closing Date.
(d) Any fees and expenses required to be paid on or before the Closing Date under the Fee Letters and the “Commitment Letter” (as defined in the Fee Letters) or under any Loan Document shall have been paid.
(e) Unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least two (2) Business Days 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 Company and the Administrative Agent). 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 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (where applicable), 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement, the Security Agreement, the Pledge Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerSubsidiary Guaranty;
(ii) a Note Notes executed by the Borrowers Borrower in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Loan Party Parties is validly existing, in good standing and qualified to engage standing, as applicable in business in each jurisdiction where its ownership, lease or operation their respective jurisdictions of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectformation;
(v) a such executed documents as the Administrative Agent may reasonably require to perfect the Lenders’ first priority security interest in the Collateral, subject to the Liens set forth in Schedule 7.01, including notices of grants of security interests in intellectual property to be filed with the United States Patent and Trademark Office or United States Copyright Office, filings with the United States Surface Transportation Board and stock transfer powers;
(vi) favorable opinion opinions of each of Xxxxxx & Xxxxxx Pxxx Xxxxxxxx LLP and Txxxxx Xxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender Lender;
(vii) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all consents, licenses and as to such matters concerning approvals required in connection with the execution, delivery and performance by the Loan Parties and the validity against the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection Parties of the Liens Loan Documents, and such consents, licenses and approvals shall be in favor of the Collateral Agent)full force and effect, or (B) stating that, except as otherwise provided in Section 5.03, no such consents, licenses or approvals are so required;
(viviii) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;; and
(viiix) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 At least five days prior to the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall deliver a Beneficial Ownership Certification in Aggregate Commitments relation to the Borrower.
(c) Any fees required to be paid on or before the Closing Date shall have been paid.
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to 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). 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 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx LLP, counsel to the Loan Parties, and CravathXxxxxxx, Swaine Xxxxxx & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.May
Appears in 1 contract
Conditions of Initial Credit Extension. The effectiveness of this Agreement and the obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) completion of all due diligence with respect to (i) the Borrower, (ii) the Guarantors and (iii) the Properties included in the Borrowing Base on the Closing Date, in each case, in scope and determination satisfactory to the Joint Lead Arrangers and the Lenders in their sole discretion;
(b) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies pdf copies (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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerBorrower and executed counterparts of the Guaranty;
(ii) a Note Notes executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each the jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectformation;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx Xxxxx Xxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit G and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Lead Borrower and its Subsidiaries from the Initial Cap Table, certifying (E) that executed copies of the Spin-Off Agreements are attached thereto and (FA) that the Spin-Off shall conditions specified in Sections 4.02(a) and (b) have occurredbeen satisfied, and (B) that there has been no event or circumstance since the senior credit facilities date of the B&N Parties have closed Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that, after giving effect to all requested Credit Extensions to be made on or substantially simultaneously with the Closing Date, the Total Outstandings shall not exceed the Borrowing Base minus any Permitted Unsecured Debt as of the Closing Date;
(viiviii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on March 31, 2013, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viiix) a certificate from evidence that the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis Credit Agreement dated as of June 27, 2011, by and among the Borrower and certain subsidiaries and affiliates thereof, as the borrowers thereunder, the lenders party thereto and Bank of America, N.A., as administrative agent (the “Existing Credit Agreement”), has been or concurrently with the Closing Date after giving effect to is being terminated, all amounts owing thereunder have been paid in full and all Liens securing obligations under the transactions contemplated hereby;
(ix) Existing Credit Agreement, if any, have been or concurrently with the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan PartiesClosing Date are being released; and
(xi) all documents documentation and instruments, including Uniform Commercial Code financing statements, required by law or other information reasonably requested by the Collateral Agent Lenders in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Arrangers PATRIOT Act;
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(c) Any fees required to be filed, registered paid on or recorded to create or perfect before the first priority Liens intended to be created under the Loan Documents and all such documents and instruments Closing Date shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangerspaid.
(bd) Not less than $100,000,000 in Aggregate Commitments Unless waived by the Administrative Agent, the Borrower shall have been paid all fees, 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). 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 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Cole Real Estate Investments, Inc.)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies other electronic image scan transmission (e.g., “pdf” or “tif “ via e-mail) (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 this Agreement sufficient in number for distribution to each properly executed by a Responsible Officer of the Administrative Agent, each Lender signing Loan Party and the Lead BorrowerLenders in such number as the Agent may request;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a partyparty and each in form and substance reasonably satisfactory to the Agent;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing standing, and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of (i) Wachtell, Lipton, Xxxxx & Xxxx, (ii) Xxxxxxxx, Xxxxxx & Xxxxxx LLPFinger, P.A. and (iii) general counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (includingrequest, without limitation, with respect in form and substance reasonably satisfactory to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) Sections 4.01 and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) to the knowledge of such Responsible Officer, that (1) no all consents, licenses or approvals are required in connection with the execution, delivery and performance by such the Loan Party and the validity against such Loan Party Parties of the Loan Documents to which it is a they are party, or (2) that all such consentsif any, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence reasonably satisfactory to the Agent that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate release from the chief financial officer of agent under the Lead Borrower, SHC Credit Agreement reasonably satisfactory in form and substance to the Administrative Agent, attesting Agent evidencing that the Loan Parties liable in respect of the SHC Credit Agreement immediately prior to the Solvency Separation have been or concurrently with the Closing Date are being released as Guarantors under the SHC Credit Agreement and the other “Loan Documents” (as defined in the SHC Credit Agreement), and all Liens securing obligations of the Loan Parties on a consolidated basis as of under the SHC Credit Agreement have been or concurrently with the Closing Date after giving effect to the transactions contemplated herebyare being released;
(ix) the Security DocumentsDocuments and all other Loan Documents (to the extent to be executed on the Closing Date), each duly executed by the applicable Loan Parties;
(xA) an appraisal (based on net liquidation value) by a third party appraiser acceptable to the Agent of all other Loan Documents, each duly executed by Inventory of the applicable Loan Parties; and, the results of which are satisfactory to the Agent, and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Agent;
(xi) results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Liens permitted by Section 7.01 and Liens for which termination statements satisfactory to the Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Agent for the delivery of such termination statements have been made;
(xii) evidence that the Loan Parties have established DDAs in the name of the Loan Parties into which amounts owed by Third Party Dealers and Third Party Franchisees will be deposited;
(xiii) (A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or statements reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Agent, (B) the Credit Card Notifications and Blocked Account Agreements to the extent required pursuant to Section 6.12 hereof shall have been obtained, and (C) control agreements with respect to the Loan Parties’ securities and investment accounts have been obtained to the extent required under the Security Documents;
(xiv) the Agent shall have received a duly executed agreement from each applicable Subsidiary of SHC (other than Sears Canada Inc. and its Subsidiaries) which owns any Real Estate constituting a warehouse or distribution center that houses ABL Collateral or owns Related Intellectual Property, pursuant to which each such Subsidiary grants to the Agent a rent-free or royalty-free (as applicable) license to use such Real Estate and Related Intellectual Property in connection with the ArrangersAgent’s enforcement of its rights and remedies under the Loan Documents with respect to the ABL Collateral, during the occurrence and continuation of an Event of Default; and
(xv) the Agent shall have received such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.
(b) Not After giving effect to the initial Credit Extensions hereunder, Availability shall be not less than $100,000,000 100,000,000.
(c) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on August 25, 2012, and executed by a Responsible Officer of the Lead Borrower.
(d) The Agent shall be reasonably satisfied that any financial statements delivered to it and the Lenders fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the Audited Financial Statements.
(e) The organizational and capital structure of the Parent and its Subsidiaries shall be as previously disclosed to the Agent and the Arranger, and the Agent and the Lenders shall have received and be satisfied with a Borrowing Base Availability analysis for the period from the Closing Date through January 31, 2013, on a monthly basis.
(f) There shall not be pending any litigation or other proceeding, the result of which, either individually or in Aggregate Commitments the aggregate, could reasonably be expected to have a Material Adverse Effect.
(g) There shall not have occurred any default of any Material Contract of any Loan Party.
(h) The consummation of the transactions contemplated hereby shall not violate any Law or any Organization Document of any Loan Party.
(i) All fees required to be paid to the Agent or the Arranger on or before the Closing Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all fees, charges and disbursements of counsel to the 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 Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Agent).
(k) The Agent and the Lenders shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
(l) As of the Closing Date, SHC shall own and control legally and beneficially, either directly or indirectly, 100% of the Equity Interests of each Loan Party; Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in 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 Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Sears Hometown & Outlet Stores, Inc.)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) a pledge agreement, in substantially the form of Exhibit H (together with each other supplement or joinder delivered pursuant to Section 6.12, in each case as amended, the “Pledge Agreement”), duly executed by each Loan Party, together with:
(A) certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank, and
(B) proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge Agreement, covering the Collateral described in the Pledge Agreement;
(iv) such certificates of resolutions or other action, incumbency certificates including specimen signatures and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(ivv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and each Loan Party Guarantor is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or formation and in the conduct State of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;California.
(vvi) a favorable opinion of each of Xxxxxx & Xxxxxx Xxxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit G and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effectso required;
(viii) a certificate from the chief financial officer signed by a Responsible Officer of the Lead BorrowerBorrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, satisfactory in form and substance to (B) that there has been no event or circumstance since the Administrative Agent, attesting to the Solvency date of the Loan Parties on Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a consolidated basis Material Adverse Effect; and (C) a calculation of the Lease Adjusted Leverage Ratio as of the Closing Date after giving effect to the transactions contemplated herebyDecember 30, 2007;
(ix) evidence that the Security Documents, each duly executed by Existing Credit Agreement has been or concurrently with the applicable Loan Parties;Closing Date is being terminated; and
(x) all such other Loan Documentsassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties; and
(xi) all documents and instrumentsAdministrative Agent, including Uniform Commercial Code financing statementsthe L/C Issuer, required by law the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, 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).
(d) The Closing Date shall have occurred on or before May 31, 2008. 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 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt Agent shall have received all of the following, each of which shall be originals or telecopies (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 this Agreement sufficient in number for distribution to executed by the Administrative AgentBorrower, the Guarantor and each Lender and the Lead BorrowerLender;
(ii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) counterparts of the Guaranty executed by the Guarantor;
(iv) such certificates certificate of resolutions or other action, incumbency certificates certificate and/or other certificates of Responsible Officers the Secretary or Assistant Secretary of each Loan Party or its General Partner as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(ivv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is and the General Partners are duly organized or formed, and that each Loan Party and each General Partner is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectformation;
(vvi) a favorable opinion of each of (A) Xxxxxx & Xxxxxx LLP, counsel to each Loan Party and the Loan PartiesGeneral Partners, and Cravath(B) the Vice President, Swaine & Xxxxx LLP, counsel to General Counsel and Secretary of the Loan PartiesMLP General Partner, in each casecase in form and substance satisfactory to Administrative Agent and the Lenders, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)Lender;
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party, (A) either (i) certifying that the conditions specified in clauses (a), (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, or (Dii) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto so required; and (FB) certifying as to the following matters:
(A) the representations and warranties of each Loan Party set forth in this Agreement shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed extent that any such representation or warranty is qualified by materiality) on or substantially simultaneously with the Closing Date, both before and after giving effect to any Credit Extension being made on such date;
(viiB) evidence that all insurance required no Default shall exist on the Closing Date, before and after giving effect to be maintained pursuant to the any Credit Extension being made on such date; and
(C) there does not exist any pending or threatened (i) proceeding under any Debtor Relief Law in respect of any Loan Documents and all endorsements Party or any Subsidiary, or (ii) litigation or other proceeding in favor respect of the Collateral Agent required under initial Credit Extension or that could be reasonably expected to have, either individually or in the Loan Documents have been obtained and are in effectaggregate, a Material Adverse Effect;
(viii) a certificate from the chief financial officer of the Lead Borrowerall amounts, satisfactory in form and substance to the Administrative Agentif any, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created then owed under the Loan Documents and all such documents and instruments Existing Credit Agreement shall have been so filed, registered or recorded, shall concurrently be repaid in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.full or refinanced with Loans under this Agreement;
(b) Not less than $100,000,000 in Aggregate Commitments The Administrative Agent shall have been received from Lenders other than the Lead Lenders executing this AgreementInitial Financial Statements.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 AgentAgent and each of the Lenders:
(i) executed counterparts of (A) this Agreement Agreement, (B) the Security Agreement, (C) the Guaranties and (D) each other Security Instrument required to be delivered in connection herewith, in each case sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerCompany;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in the respective jurisdictions specified in Schedule 4.01, which include each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx McGuireWoods LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit M and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has not occurred a material adverse change (x) in the business, assets, properties, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of the Company and its Subsidiaries, taken as a whole, since February 29, 2005, or (y) in the facts and information regarding the Company and its Subsidiaries as represented to date and (C) as to the absence of any action, suit, investigation or proceeding pending, or to the knowledge of the Company, threatened in any court or before any arbitrator or governmental authority that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Company ended on May 31, 2005, signed by a Responsible Officer of the Company;
(ix) a duly completed Borrowing Base Certificate dated as of the Closing Date certifying as to the Borrowing Base as of July 31, 2005, signed by a Responsible Officer of the Company;
(x) a duly completed Borrowing Base Schedule as of July 31, 2005;
(xi) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viiixii) a certificate from evidence that the chief financial officer Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(xiii) an executed Request for Credit Extension;
(xiv) Uniform Commercial Code financing statements for filing in all places required by applicable law to perfect the Liens of the Lead BorrowerAdministrative Agent for the benefit of the Secured Parties under the Security Instruments as a first priority Lien as to items of Collateral in which a security interest may be perfected by the filing of financing statements, satisfactory and such other documents and/or evidence of other actions as may be necessary under applicable law to perfect the Liens of the Administrative Agent for the benefit of the Secured Parties under the Security Instruments as a first priority Lien in form and substance to such other Collateral as the Administrative Agent may require;
(i) Uniform Commercial Code search results with respect to the Borrowers showing only Liens acceptable to the Administrative Agent, attesting to and (ii) such duly executed Landlord Waivers, if any, as may be requested by the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated herebyAdministrative Agent in its sole discretion;
(ixxvi) the Security DocumentsAudited Financial Statements, each duly executed audited and accompanied by (i) a report and opinion of the Public Accountant as to whether such financial statements are free of material misstatement, which report and opinion shall be prepared in accordance with audit standards of the Public Company Accounting Oversight Board and applicable Loan PartiesSecurities Laws and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit or with respect to the absence of material misstatement and (ii) an attestation report of the Public Accountant on management’s assessment of the Company’s internal control over financial reporting prepared pursuant to Regulation S-X Rule 2.02(f) and PCAOB No. 2 under the Securities Laws;
(xxvii) all other Loan Documentsthe unaudited consolidated balance sheet of the Company and its Subsidiaries as at May 31, 2005, and the related consolidated statements of earnings and cash flows for the fiscal quarter then ended;
(xviii) forecasts prepared by management of the Company, each duly executed by in form reasonably satisfactory to the applicable Loan PartiesAdministrative Agent, of an annual consolidated balance sheet, income statement and cash flow statement of the Company and its Subsidiaries for each fiscal year ending in February of 2006, 2007, 2008 and 2009; and
(xixix) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender, the New Vehicle Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Company shall have paid all reasonable fees, charges and disbursements of counsel to 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 Company and the Administrative Agent). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in 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 hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Carmax Inc)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, PDFs or telecopies (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 reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could qualify in any such jurisdiction would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, in each case as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower Borrower, certifying that (A) that the conditions specified in clauses (a), (bSections 4.02(a) and (c4.02(b) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party Party, and the validity against such Loan Party Party, of the Loan Documents to which it is a party, or except for (21) that all such consents, licenses and approvals have been obtained and by the Loan Parties prior to the Effective Date, each of which are in full force and effecteffect as of the Effective Date, or (D2) there have not been any material change those the failure of which to obtain, individually or in the capital structure aggregate, would not have, and capitalization would not reasonably be expected to have, a Material Adverse Effect, and (C) as of the Lead Borrower and its Subsidiaries from Effective Date after giving effect to the Initial Cap Tabletransactions contemplated hereby, (E) that executed copies of the Spin-Off Agreements Loan Parties on a Consolidated basis are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing DateSolvent;
(vii) a Borrowing Base Certificate dated the Effective Date, relating to the month ended on December 3, 2016, and executed by a Responsible Officer of the Lead Borrower;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security DocumentsDocuments and copies of certificates evidencing any stock being pledged thereunder, together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, results of searches (in each duly executed by case dated as of a date reasonably satisfactory to the applicable Collateral Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any mortgages (including, without limitation, with respect to the Existing Mortgages), and releases or subordination agreements reasonably satisfactory to the Collateral Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Collateral Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xi) (A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers Law to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recordedrecorded or prepared in forms ready to be filed, in each case, registered or recorded and (B) the Credit Card Notifications and Blocked Account Agreements required pursuant to the reasonable satisfaction of the Collateral Agent and the ArrangersSection 6.13 hereof.
(b) Not After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $100,000,000 20,000,000.
(c) There shall not have occurred since January 2, 2016 any event or condition that has had or would be reasonably expected to have, either individually or in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreementaggregate, a Material Adverse Effect.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerCompany;
(ii) a Note Notes executed by the Borrowers in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions executed by a secretary, assistant secretary or other action, incumbency certificates and/or other certificates of Responsible Officers equivalent of each Loan Party as Party, which certify and attach true and complete copies of the Administrative Agent may require evidencing (A) the authority Organization Documents of each Loan Party Party, resolutions of its board of directors or equivalent governing body and incumbency of signatories (or equivalents) to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a partyDocuments;
(iv) copies of each Loan Party’s Organization Documents and such other customary documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, existing and in good standing and is qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do be so qualified could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx (A) Wxxxxxxx & Xxxxxx Wxxxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, (B) internal U.S. counsel to the Loan Parties, in each casecase addressed to the Administrative Agent and each Lender;
(vi) a favorable opinion of internal United Kingdom counsel to the Loan Parties, addressed to the Administrative Agent and each Lender and as Lender;
(vii) a favorable opinion of internal German counsel to such matters concerning the Loan Parties Parties, addressed to the Administrative Agent and each Lender;
(viii) a certificate of a Responsible Officer of the Company either (A) 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 as the Administrative Agent may reasonably request to which it is a party, if any, and certifying that such consents, licenses and approvals are in full force and effect, or (includingB) stating that no such consents, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)licenses or approvals are so required;
(viix) a certificate signed by a Responsible Officer of the Lead Borrower Company certifying that (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), satisfied; (B) that with respect to the Company and its Subsidiaries, there has been no event or circumstance since May 2, 2015, the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, ; and (C) either that (1) there is no consentsaction, licenses suit, investigation or approvals are required in connection with proceeding pending or, to the execution, delivery and performance by such Loan Party and the validity against such Loan Party knowledge of the Loan Documents Company, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to which it is have a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan PartiesMaterial Adverse Effect;
(x) all such other Loan Documentsassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties; and
(xi) all documents and instrumentsAdministrative Agent, including Uniform Commercial Code financing statementsthe L/C Issuer, required by law the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments The Administrative Agent and each Lender shall have received all Patriot Act Disclosures requested by them prior to execution of this Agreement.
(c) Any fees required to be paid on or before the Closing Date shall have been paid.
(d) Unless waived by the Administrative Agent, the Company shall have paid all reasonable fees, 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 and required to be paid or reimbursed by the Company pursuant to Section 10.04(a), plus such additional amounts of such fees, charges and disbursements as shall constitute the Administrative Agent’s 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 Company and the Administrative Agent). Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC any L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Receipt by the Administrative Agent’s receipt Agent of the following, each :
(i) executed counterparts of which shall be originals or telecopies (followed promptly by originals) unless otherwise specifiedthis Agreement and the other Loan Documents, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (orParty and, in the case of certificates of governmental officialsthis Agreement, a recent date before the Closing Date) and by each in form and substance satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerLender;
(ii) copies of the Organization Documents of each Loan Party certified to be true and complete as of a Note executed recent date by the Borrowers in favor appropriate Governmental Authority of each Lender requesting the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a Notesecretary or assistant secretary of such Loan Party to be true and correct as of the Closing Date;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and each Loan Party is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease of organization or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectformation;
(v) a favorable opinion opinions of each of Xxxxxx Xxxxxxx Xxxxxxx & Xxxxxx Xxxxxxxx LLP, special counsel to the Loan PartiesParties and Xxxxxx X. Post, Senior Vice President, General Counsel and CravathCorporate Secretary of the Borrower and Holdings, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)Lender;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance condition since May 2December 31, 2015, 2010 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse EffectEffect and (B) the current Debt Ratings; and
(vii) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 5.02(a) and (b) have been satisfied;
(b) Any fees required to be paid pursuant to Section 2.09 on or before the Closing Date shall have been paid to the extent invoiced at least one Business Day prior to the Closing Date.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced at least one Business Day prior to the Closing Date.
(Cd) either that The Borrower shall have paid all principal, interest, letter of credit fees and breakage costs outstanding on the Closing Date to any lender under the Existing Credit Agreement who, as of the effectiveness of this Agreement shall no longer be a lender, for which invoices have been received.
(1e) no consents, licenses or All material governmental and third party approvals are required necessary in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals financing contemplated hereby shall have been obtained and are be in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Revolving Credit Note executed by the Borrowers Borrower in favor of each Revolving Credit Lender requesting a Revolving Credit Note;
(iii) a Term Note executed by the Borrower in favor of each Term Lender requesting a Term Note;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party the Borrower and the Trust as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(ivv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party of the Borrower and the Trust is duly organized or formed, and that each Loan Party of the Borrower and the Trust is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(vvi) a favorable opinion of each of Xxxxxx & Xxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens set forth in favor of the Collateral Agent)Exhibit H;
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying and the Trust either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effectso required;
(viii) a certificate from the chief financial officer signed by a Responsible Officer of the Lead BorrowerBorrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, satisfactory in form and substance to (B) that there has been no event or circumstance since the Administrative Agent, attesting to the Solvency date of the Loan Parties on Audited Financial Statements that has had or would be reasonably expected to have, either individually or in the aggregate, a consolidated basis Material Adverse Effect and (C) a calculation of the Consolidated Leverage Ratio as of the Closing Date after giving effect last day of the fiscal quarter of the Borrower most recently ended prior to the transactions contemplated herebyClosing Date;
(ix) a duly completed Compliance Certificate as of the Security Documentslast day of the fiscal quarter of the Borrower ended on September 30, each duly executed 2012, signed by a Responsible Officer of the applicable Loan Parties;Borrower; and
(x) all such other Loan Documentsassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties; and
(xi) all documents and instrumentsAdministrative Agent, including Uniform Commercial Code financing statementsthe L/C Issuer, required by law the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 Any fees required to be paid to the Administrative Agent or any Lender in Aggregate Commitments connection with this Agreement or the Fee Letter on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, 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 date that is three Business Days prior to 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). 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 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit and Term Loan Agreement (DCT Industrial Trust Inc.)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx Xxxxxx, Xxxxx & Xxxxxx Xxxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and authorization, perfection of the Liens in favor of the Collateral AgentAgent and no lien creation as a result of the financing);
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, the Balance Sheet Date that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, Effect and (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viii) a payoff letter from Wachovia Bank, National Association, as agent for the lenders under the Existing Credit Agreement satisfactory in form and substance to the Administrative Agent evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(ix) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ixx) the Security Documents, each duly executed by the applicable Loan Parties;
(xxi) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xiA) an appraisal (based on net liquidation value) by a third party appraiser acceptable to the Collateral Agent of all Inventory of the Borrowers, the results of which are satisfactory to the Collateral Agent, it being acknowledged that this condition has been satisfied, (B) a written report prepared for the Collateral Agent regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory to the Collateral Agent and (C) other due diligence materials (including, without limitation, with respect to the Loan Parties’ and certain of their Affiliates’ organizational structure) reasonably requested by the Administrative Agent;
(xiii) results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each case dated as of a date reasonably satisfactory to the Collateral Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, and releases or subordination agreements satisfactory to the Collateral Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Collateral Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(xiv) duly executed Customs Broker Agreements with each of the Loan Parties’ customs brokers, freight forwarders or carriers;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent Agent, (B) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, and (C) control agreements with respect to the ArrangersLoan Parties’ securities and investment accounts;
(xvi) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) Not After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $100,000,000 150,000,000.
(c) The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on November 2008, and executed by a Responsible Officer of the Lead Borrower.
(d) The Administrative Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the most recent financial information delivered to the Administrative Agent.
(e) The Administrative Agent shall have received and be satisfied with (i) a detailed forecast prepared on a quarterly basis for the period commencing on the Closing Date and ending in Aggregate Commitments January, 2010, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow, by quarter, each prepared in conformity with GAAP and consistent with the Loan Parties’ then current practices, (ii) a detailed forecast prepared on annual basis for the period from January, 2010 to the Maturity Date, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow, by year, each prepared in conformity with GAAP and consistent with the Loan Parties’ then current practices and (iii) such other information (financial or otherwise) reasonably requested by the Administrative Agent; it being acknowledged that the conditions in clauses (i) and (ii) above have been satisfied.
(f) There shall not be pending any litigation or other proceeding, the result of which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, other than as set forth on Schedule 5.06.
(g) There shall not have occurred any default of any Material Contract of any Loan Party which could reasonably be expected to have a Material Adverse Effect.
(h) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(i) All necessary consents and approvals to the transactions contemplated hereby shall have been received from Lenders obtained and shall be satisfactory to the Administrative Agent, other than those which, individually or in the aggregate, could not have, and could not be expected to have, a Material Adverse Effect.
(j) After giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder), no Default or Event of Default shall exist.
(k) All fees required to be paid to the Agents or the Arranger on or before the Closing Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(l) The Borrowers shall have paid all fees, charges and disbursements of counsel to 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 Borrowers and the Administrative Agent).
(m) The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”).
(n) No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(o) The Closing Date shall have occurred on or before January 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders executing of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this AgreementSection 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 Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (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 AgentAgent and its legal counsel:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) counterparts of the Guaranty executed by ProQuest Business Solutions, Inc. and ProQuest Information and Learning Company, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(iii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iiiiv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(ivv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, formed and that each Loan Party is validly existing, existing in good standing and qualified to engage in business in each the jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization or formation;
(vvi) a favorable opinion of each of Xxxxxx & Xxxxxx LLPXxxxxxx PLLC, counsel to the Loan Parties, substantially in the form of Exhibit G;
(vii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and Cravathapprovals required in connection with the execution, Swaine & Xxxxx LLPdelivery and performance by such Loan Party, counsel to and the validity against such Loan PartiesParty, in each case, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and of the Loan Documents as the Administrative Agent may reasonably request to which it is a party (includingand such consents, without limitationlicenses and approvals shall be in full force and effect) or (B) stating that no such consents, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)licenses or approvals are so required;
(viviii) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, ;
(Cix) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) evidence that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on Existing Credit Agreement has been or substantially simultaneously concurrently with the Closing Date;Date is being terminated and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released; and
(viix) evidence that all insurance required to be maintained pursuant to such other assurances, certificates, documents, consents or opinions as the Loan Documents and all endorsements in favor of Administrative Agent, any L/C Issuer, the Collateral Agent required under Swing Line Lender or the Loan Documents have been obtained and are in effect;Required Lenders reasonably may require.
(viiib) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance The Borrower shall have paid to the Administrative Agent, attesting the Arranger or any Lender all fees required to be paid on or before the Closing Date.
(c) The Borrower shall have paid all Attorney Costs of the Administrative Agent to the Solvency extent invoiced prior to or on the Closing Date.
(d) The Administrative Agent shall have received evidence, reasonably satisfactory to the Administrative Agent, that the Borrower has received gross cash proceeds of not less than $75,000,000 from the issuance of Senior Notes.
(e) There shall not have occurred a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent), condition (financial or otherwise) or prospects of the Loan Parties on a consolidated basis as Borrower or of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents Borrower and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recordedits Subsidiaries taken as a whole, in each case, to case since the reasonable satisfaction date of the Collateral Agent and the ArrangersAudited Financial Statements.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Proquest Co)
Conditions of Initial Credit Extension. The obligation of the LC each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specifiedor electronic facsimiles, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement sufficient in number for distribution to Agreement, the Administrative Agent, each Lender Parent Guaranty and the Lead BorrowerOpco Guaranty;
(ii) a Note executed by the Borrowers each Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, formed and that each Loan Party is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(v) a favorable opinion of each of Xxxxxx Xxxxxxxxx & Xxxxxx Xxxxxxxx LLP, counsel to the Loan Parties, Parties and Cravath, Swaine & Xxxxx LLP, counsel to a favorable opinion of the Loan PartiesGeneral Counsel of the General Partner, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate of a Responsible Officer of the MLP either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by the Loan Parties and the validity against the Loan Parties of the Loan Documents, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Lead Borrower MLP certifying that (A) that the conditions specified in clauses (a), (b) both before and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents Borrowing on the Closing Date Date, (including a) the representations and warranties of the MLP and the Borrowers contained in Article V or any Loans made or Letters other Loan Document are true and correct in all material respects on and as of Credit issued hereunder))such date, and (b) no Default exists, and (B) that there has been no event or circumstance since May 2December 31, 2015, 2010 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from evidence of termination of all commitments to extend credit under the chief financial officer Existing Credit Agreement and repayment of the Lead Borrowerall amounts owed thereunder; and
(ix) such other assurances, satisfactory in form and substance to certificates, documents, consents or opinions as the Administrative Agent, attesting to any L/C Issuer, the Solvency of Swing Line Lender or the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees invoiced at least one Business Day before the Closing Date and required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least one Business Day prior to 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 Borrowers and the Administrative Agent). 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 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, PDFs or telecopies (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 reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could qualify in any such jurisdiction would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, in each case as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower Borrower, certifying that (A) that the conditions specified in clauses (a), (bSections 4.02(a) and (c4.02(b) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party Party, and the validity against such Loan Party Party, of the Loan Documents to which it is a party, or except for (21) that all such consents, licenses and approvals have been obtained and by the Loan Parties prior to the Effective Date, each of which are in full force and effecteffect as of the Effective Date, or (D2) there have not been any material change those the failure of which to obtain, individually or in the capital structure aggregate, would not have, and capitalization would not reasonably be expected to have, a Material Adverse Effect, and (C) as of the Lead Borrower and its Subsidiaries from Effective Date after giving effect to the Initial Cap Tabletransactions contemplated hereby, (E) that executed copies of the Spin-Off Agreements Loan Parties on a Consolidated basis are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing DateSolvent;
(vii) a Borrowing Base Certificate dated the Effective Date, relating to the month ended on December 1, 2012, and executed by a Responsible Officer of the Lead Borrower;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security DocumentsDocuments and copies of certificates evidencing any stock being pledged thereunder, together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, [RESERVED];
(xi) results of searches (in each duly executed by case dated as of a date reasonably satisfactory to the applicable Collateral Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, and releases or subordination agreements reasonably satisfactory to the Collateral Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Collateral Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xixii) (A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers Law to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recordedrecorded or prepared in forms ready to be filed, in each case, registered or recorded and (B) the Credit Card Notifications and Blocked Account Agreements required pursuant to the reasonable satisfaction of the Collateral Agent and the ArrangersSection 6.13 hereof.
(b) Not After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $100,000,000 30,000,000.
(c) There shall not have occurred since September 30, 2010 any event or condition that has had or would be reasonably expected to have, either individually or in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreementaggregate, a Material Adverse Effect.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Revolving Loan Note executed by the Borrowers Borrower in favor of each Lender requesting a Revolving Loan Note;
(iii) the Swing Line Note executed by the Borrower in favor of the Swing Line Lender;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(ivv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vvi) a favorable opinion of each of Xxxxxx Xxxxx & Xxxxxx XxXxxxxx LLP, counsel to the Loan Parties, Xxxxxx Xxxxxxx & Xxxxxx, special Barbados counsel for HOT-Barbados, and CravathXxxxxxx, Swaine Xxxx & Xxxxx LLPXxxxxxx Limited, special Bermuda counsel to the Loan Partiesfor Limited, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effectso required;
(viii) a certificate from signed by a Responsible Officer of Limited certifying (A) that the chief financial officer conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Lead BorrowerAudited Financial Statements that has had or could be reasonably expected to have, satisfactory either individually or in form the aggregate, a Material Adverse Effect; and substance to the Administrative Agent, attesting to the Solvency (C) a pro forma calculation of the Loan Parties on a consolidated basis as of the Closing Date Leverage Ratio (after giving effect to the transactions contemplated herebyinitial Credit Extension) as of the last day of the fiscal quarter of Limited ended as of August 31, 2014;
(ix) evidence that all Indebtedness incurred pursuant to the Security Documents, each duly executed by Existing Credit Agreement (other than the applicable Loan PartiesExisting Letters of Credit) shall have been repaid in full (or shall be repaid substantially contemporaneously with the initial funding of Loans on the Closing Date) and all commitments in connection therewith shall have terminated;
(x) all such other Loan Documentsassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties; and
(xi) all documents and instrumentsAdministrative Agent, including Uniform Commercial Code financing statementsthe L/C Issuer, required by law the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, 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). 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 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Helen of Troy LTD)
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension hereunder and of the Administrative Agent to endeavor to cause the L/C Issuer to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty or the Lenders, as applicable, 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 this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx Irell and Xxxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) that (1) no consents, licenses or approvals are required in connection with the execution, execution and delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, except for (a) the perfection or maintenance of the Liens created under the Security Documents (including the first priority nature thereof) or (2b) that all such consents, licenses and approvals as have been obtained or made and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viii) a certificate payoff letter from the chief financial officer of agent for the Lead Borrower, lenders under the Existing Credit Agreement satisfactory in form and substance to the Administrative Agent, attesting Agent evidencing that the Existing Credit Agreement and all commitments to the Solvency of the Loan Parties on a consolidated basis as of lend thereunder have been or concurrently with the Closing Date after giving effect to are being terminated, all obligations (other than contingent indemnification obligations for which no claim has been asserted) thereunder are being paid in full, and all Liens securing obligations under the transactions contemplated herebyExisting Credit Agreement have been or concurrently with the Closing Date are being released;
(ix) the Security DocumentsDocuments and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xi) (A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Collateral Agent of all Inventory of the Borrowers, the results of which are satisfactory to the Collateral Agent and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory to the Collateral Agent;
(xii) results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each case dated as of a date reasonably satisfactory to the Collateral Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases or subordination agreements satisfactory to the Collateral Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Collateral Agent for the delivery of such termination statements and releases or subordination agreements have been made;
(xiii) (A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recordedrecorded to the satisfaction of the Collateral Agent, (B) the Credit Card Notifications and Blocked Account Agreements required pursuant to Section 6.13 hereof, (C) control agreements with respect to the Loan Parties’ securities and investment accounts, and (D) Collateral Access Agreements for the Loan Parties’ distribution centers and warehouses as required by the Collateral Agent; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $50,000,000.
(c) The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on October 3, 2010, and executed by a Responsible Officer of the Lead Borrower.
(d) The Administrative Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the most recent financial information delivered to the Administrative Agent.
(e) The Administrative Agent shall have received and be satisfied with (i) detailed financial projections and business assumptions for the Borrowers and their Subsidiaries on (x) a monthly basis for the twelve month period following the Closing Date and (y) on a quarterly basis, for each fiscal year thereafter through the Maturity Date, including, in each case, to a consolidated income statement, balance sheet, statement of cash flow and Availability analysis, each prepared in conformity with GAAP and consistent with the reasonable satisfaction of Loan Parties’ then current practices and (b) such other information (financial or otherwise) reasonably requested by the Collateral Agent and the ArrangersAdministrative Agent.
(bf) Not less than $100,000,000 There shall not have occurred since January 3, 2010 (i) any event or condition that has had or could reasonably be expected, either individually or in Aggregate Commitments the aggregate, to have a Material Adverse Effect or (ii) any action, suit, investigation or proceeding pending or, to the Knowledge of the Borrowers, threatened in any court or before any arbitrator or governmental authority that if determined adversely to the Loan Parties could reasonably be expected to have a Material Adverse Effect.
(g) Each Material Contract of any Loan Party shall be in full force and effect and no default or event of default shall have occurred and be continuing thereunder.
(h) The consummation of the transactions contemplated hereby shall not violate any applicable Laws or any Organization Document.
(i) All fees required to be paid to the Agents or the Arranger on or before the Closing Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all fees, charges and disbursements of examiners and appraisers to 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 Borrowers and the Administrative Agent).
(k) The Administrative Agent shall have received from Lenders all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
(l) The Arranger shall have successfully arranged the syndication of the Loans as contemplated in its engagement letter with the Loan Parties.
(m) All governmental consents and approvals, and all third party consents required for the Loan Parties to consummate the financing shall have been obtained.
(n) The Administrative Agent shall be reasonably satisfied with the capital structure of the Loan Parties. Without limiting the foregoing, the Loan Parties shall not have any Indebtedness outstanding as of the Closing Date other than Permitted Indebtedness and prior to the Lead Lenders executing Credit Extensions hereunder and application of part or all of the proceeds thereof to satisfy the obligations outstanding under the Existing Credit Agreement, Indebtedness under the Existing Credit Agreement. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this AgreementSection 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 Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerCompany and, if Advance Funding Arrangements shall exist with respect to funding on the Closing Date, executed Advance Funding Documentation in form and number reasonably acceptable to the Administrative Agent;
(ii) a Note Notes executed by the Borrowers in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease formation or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent incorporation and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or jurisdiction reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.Administrative Agent;
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension and of the Administrative Agent to endeavor to cause the L/C Issuer to issue its initial Credit Extension hereunder is on the Closing Date were subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies other electronic image scan transmission (e.g., “pdf” or “tif ” via e-mail) (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 reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx LLPXxxxx Day, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, the date of the Specified Financial Statements of the type described in clause (ii) of the definition thereof that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viii) a certificate payoff letter from The Huntington National Bank under the chief financial officer of the Lead Borrower, Existing Credit Agreement reasonably satisfactory in form and substance to the Administrative Agent, attesting to Agent evidencing that the Solvency of the Loan Parties on a consolidated basis as of Existing Credit Agreement has been or concurrently with the Closing Date after giving effect to is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the transactions contemplated herebyExisting Credit Agreement have been or concurrently with the Closing Date are being released;
(ix) the Security DocumentsDocuments and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required (A) appraisals (based on net liquidation value) by law or reasonably requested by a third party appraiser acceptable to the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and of all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction Inventory of the Collateral Agent and Borrowers, the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.results of which are reasonably satisfactory to the
Appears in 1 contract
Samples: Credit Agreement (Hamilton Beach Brands Holding Co)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, existing and in good standing and qualified to engage in business in each under the Laws of the jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectincorporation or organization;
(v) a favorable opinion opinions of each of Xxxxxx (A) Xxxxxx, Xxxx & Xxxxxx Xxxxxxxx LLP, counsel to the Loan Parties, and Cravath(B) Xxxxxxx, Swaine Xxxxxx & Xxxx, P.C., LLC, local Alabama real estate counsel, (C) Stroock & Stroock & Xxxxx LLP, special counsel to the Loan PartiesTwin Brook, in and (D) McGuireWoods LLP, special counsel to The Children’s Place (Virginia), LLC, each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that that, excluding the filing for bankruptcy and the implementation of the bankruptcy proceeding of Hoop, there has been no event or circumstance since May 2, 2015, the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals (other than those referenced in Section 4.01(a)(iii) of this Agreement) are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, and (D) there have not been any material change in to the capital structure and capitalization Solvency of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies Loan Parties on a Consolidated basis as of the Spin-Off Agreements are attached thereto and (F) that Closing Date after giving effect to the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Datetransactions contemplated hereby;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viii) a certificate payoff letter from the chief financial officer of lenders under the Lead Borrower, Existing Credit Agreement satisfactory in form and substance to the Administrative Agent, attesting to Agent evidencing that the Solvency of the Loan Parties on a consolidated basis as of Existing Credit Agreement has been or concurrently with the Closing Date after giving effect to is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the transactions contemplated herebyExisting Credit Agreement have been or concurrently with the Closing Date are being released;
(ix) the Security DocumentsDocuments (including, without limitation, the Mortgage) and, to the extent not previously delivered to the Administrative Agent pursuant to the Existing Credit Agreement, certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) the Intercreditor Agreement, duly executed by each of the parties thereto;
(xi) all other Loan Documents, each duly executed by the applicable Loan Parties; andParties and the other parties thereto;
(xixii) certified copies of the Note Documents, duly executed by the parties thereto, together with such other agreements, instruments and documents delivered in connection therewith as the Administrative Agent shall reasonably request;
(xiii) results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each case dated as of a date reasonably satisfactory to the Collateral Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, or subordination agreements reasonably satisfactory to the Collateral Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Collateral Agent for the delivery of such termination statements and releases have been made;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent and (B) the ArrangersCredit Card Notifications and Blocked Account Agreements required pursuant to Section 6.13 hereof;
(xv) a Phase I environmental site assessment report in accordance with ASTM Standard E1527-05, in form and substance reasonably satisfactory to the Collateral Agent, from an environmental consulting firm reasonably acceptable to the Collateral Agent, which report shall identify recognized environmental conditions with respect to the Alabama Property and shall, to the extent possible, quantify any related costs and liabilities associated with such conditions, and the Collateral Agent shall be satisfied with the nature and amount of any such matters;
(xvi) an appraisal (based upon FMV) of the Alabama Property complying with the requirements of FIRREA by a third party appraiser reasonably acceptable to the Collateral Agent and otherwise in form and substance reasonably satisfactory to the Collateral Agent; and
(xvii) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) Not After giving effect to (i) the first funding under the Loans and the funding under the Note Purchase Facility, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Excess Availability shall be not less than $100,000,000 80,000,000.
(c) The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the week ended on July 26, 2008, and executed by a Responsible Officer of the Lead Borrower.
(d) The Administrative Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the most recent financial information delivered to the Administrative Agent.
(e) The Administrative Agent shall have received and be satisfied with (i) a detailed forecast for the period commencing on the Closing Date and ending with the end of the then Fiscal Year, which condition shall be deemed to have been satisfied by the Administrative Agent’s receipt of the lender presentation dated June 2, 2008.
(f) There shall not be pending any litigation or other proceeding, the result of which, either individually or in Aggregate Commitments the aggregate, could reasonably be expected to have a Material Adverse Effect.
(g) The consummation of the transactions contemplated hereby shall not violate any Applicable Law or any Organization Document.
(h) The Borrowers shall have entered into the Note Purchase Facility, and the terms of, and the documentation evidencing, the Note Purchase Facility shall be reasonably satisfactory to the Administrative Agent.
(i) All fees required to be paid to the Agents on or before the Closing Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all fees, charges and disbursements of counsel to 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 Borrowers and the Administrative Agent).
(k) The Administrative Agent shall have received from Lenders all documentation and other than information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Lead Lenders executing this AgreementUSA PATRIOT Act.
(l) No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
Appears in 1 contract
Samples: Credit Agreement (Childrens Place Retail Stores Inc)
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative AgentLender’s receipt of the following, each of which shall be originals or telecopies facsimiles (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 AgentLender and its legal counsel:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) if requested by the Lender, a Revolving Note executed by the Borrowers in favor of each Lender requesting a NoteBorrower;
(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 Lender may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent Lender may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in California, Delaware and each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx LLP, internal legal counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit G and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Lender may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor Audited Financial Statements, together with the unaudited consolidated balance sheet of the Collateral Agent required under Borrower and its Subsidiaries as at June 30, 2004, and the Loan Documents have been obtained related consolidated statements of income, shareholders’ equity and are in effectcash flows, for the fiscal quarter then ended;
(viii) a certificate from the chief financial officer signed by a Responsible Officer of the Lead BorrowerBorrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, satisfactory in form and substance to (B) that there has been no event or circumstance since the Administrative Agent, attesting to the Solvency date of the Loan Parties on Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a consolidated basis Material Adverse Effect; and (C) a calculation of the TTM EBITDA as of the Closing Date after giving effect last day of the fiscal quarter of the Borrower most recently ended prior to the transactions contemplated herebyClosing Date;
(ix) the Security Collateral Documents, each duly including control agreements with respect to the bank and investment accounts of the Loan Parties, executed by each Loan Party and other Persons required to be a party thereto, in appropriate form for recording or filing, where necessary, together with:
(A) acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the security interests of the Lender, or the Lender for its benefit and the benefit of its Affiliates, or other evidence satisfactory to the Lender that there has been filed, registered or recorded (or arrangements made with a reputable filing service to file, register or record) all financing statements and other filings, registrations and recordings necessary and advisable to perfect the Liens of the Lender, or the Lender for its benefit and the benefit of its Affiliates, in accordance with applicable Loan Partieslaw;
(B) written advice relating to such Lien and judgment searches as the Lender shall have requested, and such termination statements or other documents as may be necessary to confirm that the Collateral is subject to no other Liens in favor of any Persons (other than Permitted Liens);
(x) evidence that all other Loan actions necessary or, in the opinion of the Lender, desirable to perfect and protect the first priority Lien created by the Collateral Documents, each duly executed by and to enhance the applicable Lender’s ability to preserve and protect its interests in and access to the Collateral, have been taken;
(xi) evidence that the Lender has been named as loss payee under all policies of casualty insurance under a Form 438BFU or other standard lender’s loss payable endorsement, and as additional insured under all policies of liability insurance, required in accordance with Section 6.07 and the Collateral Documents, together with a certificate of insurance as to all insurance coverage on the properties of the Loan Parties; and
(xixii) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as the Lender reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been received from Lenders other than paid.
(c) The Borrower shall have paid all Attorney Costs of the Lead Lenders executing this AgreementLender to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs 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 Lender).
(d) The Closing Date shall have occurred on or before October 31, 2004.
Appears in 1 contract
Samples: Credit Agreement (Cnet Networks Inc)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (or, in the case of the Initial Designated Borrower, an officer of the Initial Designated Borrower authorized to represent the Initial Designated Borrower, as evidenced by a recent extract from the Dutch Trade Register or otherwise), 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 AgentAgent and each of the Lenders:
(i) executed counterparts of (i) this Agreement executed by each Borrower and (ii) a Guaranty executed by each Borrower and each Material Domestic Subsidiary as of the Closing Date, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerCompany;
(ii) a Note Notes executed by the Borrowers in favor of each Lender requesting a NoteNotes;
(iii) such certificates of or resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx (i) Xxxxxxx Procter LLP, U.S. counsel to the Loan Parties, in the form attached hereto as Exhibit I-1, and Cravath(ii) CMS Xxxxx Star Busmann, Swaine & Xxxxx LLP, Dutch counsel to the Loan PartiesInitial Designated Borrower, in the form attached hereto as Exhibit I-2, in each case, addressed to the Administrative Agent and each Lender Lender, in form and as substance acceptable to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)each Lender;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor a certificate signed by a Responsible Officer of the Collateral Agent required under Company certifying (A) that the Loan Documents conditions specified in Sections 4.02(a) and (b) have been obtained satisfied and are (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in effectthe aggregate, a Material Adverse Effect;
(viii) a certificate from evidence that the chief financial officer of Existing Credit Agreement has been or concurrently with the Lead BorrowerClosing Date is being terminated and all Liens, satisfactory in form and substance to if any, securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released; and
(ix) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, attesting to the Solvency of L/C Issuer, the Loan Parties on a consolidated basis as of Swing Line Lender or the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to 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 Company and the Administrative Agent). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in 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 Administrative Agent shall have received written notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender Lenders to make its the initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower, 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 AgentAgent and its legal counsel:
(i) executed counterparts of this Agreement and the other Loan Documents, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerBorrowers;
(ii) a Note executed by the Borrowers in favor of each Lender requesting that requests a Note;
(iii) amendments to, and/or amendments and restatements of, such other Loan Documents as Administrative Agent may reasonably require to effect the terms of this Agreement, including, without limitation, if the Borrower has adopted or has any trademarks that are registered with the United States Patent and Trademark Office (“USPTO”) and are not covered by a prior filing of Administrative Agent’s security interest therein with the USPTO, a supplemental grant with respect to such trademarks;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party Borrower as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party Borrower is a party or is to be a party;
(ivv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party Borrower is duly organized or formed, and that each Loan Party Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vvi) a favorable opinion or opinions of each of Xxxxxx & Xxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each caseBorrowers, addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit H and such other matters concerning the Loan Parties Borrowers and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vivii) a certificate of each Borrower signed by a Responsible Officer either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by, and the validity against, such Borrower of the Lead Loan Documents to which it is a party, which consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate of each Borrower signed by a Responsible Officer certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement satisfied, and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(viiix) evidence that all Insurance Requirements have been met and that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are thereto is in effect;; and
(viiix) a certificate from the chief financial officer of the Lead Borrowersuch other assurances, satisfactory in form and substance to certificates, documents, consents or opinions as the Administrative Agent, attesting to the Solvency of L/C Issuer or the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been received from Lenders other than paid.
(c) The Borrowers shall have paid all Attorney Costs of the Lead Lenders executing this AgreementAdministrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs 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 Borrowers and the Administrative Agent).
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:: 112
(a) The the Administrative Agent shall have received evidence, in form and substance reasonably satisfactory to Administrative Agent, that Administrative Agent has (or will have concurrently with the effectiveness of the Agreement) a valid perfected first priority security interest in the ABL Priority Collateral;
(b) the Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies other electronic image scan transmission (e.g., “pdf” or “tif “ via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty or the Lenders, as applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could qualify in such jurisdiction would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable written opinion of each of Xxxxxx & Xxxxxx Xxxxxxx LLP, counsel to for the Loan Parties, and Cravath, Swaine & Xxxxx LLP, such other counsel to for the Loan PartiesParties as may be reasonably requested by Administrative Agent, in each case(A) dated the Closing Date, (B) addressed to the Administrative Agent and each Lender the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Section 4.01(e) and Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied satisfied;
(after giving effect to vii) a certificate signed by a Responsible Officer of Lead Borrower certifying that the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party obligations of the Loan Documents Parties hereunder and the Term Loan Facility do not give rise to which it is any obligation of the Lead Borrower or its Subsidiaries to grant any Liens in respect of any existing indebtedness of the Lead Borrower or its Subsidiaries or violate any of the terms of the agreements with respect thereto, together with such supporting detail as Administrative Agent may request, including with respect to the calculation of Consolidated tangible net assets or any other amounts that are the basis for such certification; 113
(viii) a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in duly completed Compliance Certificate as of the capital structure and capitalization last day of the most recent Fiscal Quarter of the Lead Borrower and its Subsidiaries from the Initial Cap Table, ended at least forty-five (E45) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with days prior to the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) , signed by a certificate from the chief financial officer Responsible Officer of the Lead Borrower;
(ix) certificates of insurance for the insurance policies required by Section 6.07 and the applicable provisions of the other Loan Documents (including customary lender’s loss payable endorsements and naming the Administrative Agent as an additional insured, in each case in form and substance reasonably satisfactory to the Administrative Agent);
(x) a payoff letter from the Existing Term Loan Agent reasonably satisfactory in form and substance to the Administrative Agent, attesting to Agent evidencing that the Solvency of the Existing Term Loan Parties on a consolidated basis as of Agreement has been or concurrently with the Closing Date after giving effect to is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the transactions contemplated herebyExisting Term Loan Agreement have been or concurrently with the Closing Date are being released;
(ixxi) the Security DocumentsDocuments (other than the Mortgages and the Related Real Estate Collateral Security Agreements), each duly executed by the applicable Loan Parties;
(xxii) all other Loan DocumentsDocuments (other than the Mortgages and the Related Real Estate Collateral Security Agreements), each duly executed by the applicable Loan Parties;
(xiii) results of Lien searches with respect to each Loan Party (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the Collateral, except for Permitted Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any Mortgages, and releases or subordination agreements reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xiA) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Administrative Agent and the Arrangers to be filed, registered or recorded to create create, perfect or perfect continue the perfection of the first priority Liens intended to be created under in the Loan Documents ABL Priority Collateral and all such documents and instruments shall have been so will be filed, registered or recordedrecorded to the satisfaction of the Administrative Agent, (B) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, and (C) other than for Store locations, Collateral Access Agreements for locations where there is ABL Priority Collateral or other assets Administrative Agent may require access and use of to realize on ABL Priority Collateral as such Collateral Access Agreements may be required by the Administrative Agent;
(c) after giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby, (iii) provision for payment of all other fees and expenses of the Transactions, and (iv) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Excess Availability shall be not less than $400,000,000;
(d) the Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the Fiscal Period ended on February 23, 2013, and executed by a Responsible Officer of the Lead Borrower;
(e) no Company Material Adverse Effect shall have occurred since February 25, 2012; 114
(f) the Lead Arrangers shall have received (i) projected balance sheets, income statements, statements of cash flows and availability of the Loan Parties for the period from and including the 2014 Fiscal Year through the 2018 Fiscal Year (on a Fiscal Period basis for the 2014 Fiscal Year, on a quarterly basis for the 2015 Fiscal Year and an annual basis thereafter), and a deal-basis carve-out balance sheet for the Loan Parties as of February 21, 2013, in each casecase in form and substance reasonably satisfactory to Administrative Agent, (ii) a quality of earnings review of the Lead Borrower and its Subsidiaries for the 2012 Fiscal Year and for the year-to-date 28-week period ending September 6, 2012 by Deloitte & Touche and (iii)(A) deal basis carve-out income statements for the Lead Borrower and its Subsidiaries for the 2011 and 2012 Fiscal Year and 52-week period ending December 1, 2012 (or the last day of the most recent Fiscal Quarter of the Lead Borrower ended at least forty-five (45) days prior to the reasonable satisfaction Closing Date (or ninety (90) days prior to the Closing Date if such Fiscal Quarter is the final Fiscal Quarter of the Collateral Agent relevant Fiscal Year)) and (B) deal basis carve-out balance sheets for the Arrangers.Lead Borrower and its Subsidiaries as of February 25, 2012 and December 1, 2012 (or the last day of the most recent Fiscal Quarter of the Lead Borrower ended at least forty-five (45) days prior to the Closing Date (or ninety (90) days prior to the Closing Date if such Fiscal Quarter is the final Fiscal Quarter of the relevant Fiscal Year)) (the foregoing financial information, the “Deal-based Breakout Financial Information”);
(bg) Not the Lead Arrangers shall have received a solvency certificate substantially in the form attached hereto as Exhibit L, which shall have been executed by the chief financial officer of the Lead Borrower or other officer with equivalent duties of the Lead Borrower;
(h) there shall not exist any action, suit, investigation, litigation or proceeding pending in any court or before any arbitrator or governmental authority that challenges the legality of, or otherwise seeks to enjoin, the revolving credit facilities to be made available under this Agreement which Administrative Agent in its sole discretion believes is material;
(i) all costs, fees and expenses contemplated by the Loan Documents or otherwise due and payable to the Administrative Agent, the Lead Arrangers or the Lenders on or before the Closing Date in respect of the Transactions for which the Lead Borrower has received notice at least two (2) Business Days’ prior to the Closing Date have been paid in full;
(j) the Lead Arrangers shall have received all documentation and information at least five (5) Business Days prior to the Closing Date as is reasonably requested in writing by the Lead Arrangers about the Lead Borrower and its Subsidiaries required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, in each case to the extent requested in writing at least ten (10) Business Days prior to the Closing Date;
(k) the accuracy of each of the representations made by Buyer in the Acquisition Agreement as are material to the interests of the Lenders, but only to the extent that the Lead Borrower has (or its applicable Affiliate has) the right to terminate its obligations under the Acquisition Agreement or to decline to consummate the NAI Sale as a result of a breach of such representations and warranties in the Acquisition Agreement;
(l) the Administrative Agent shall have received evidence that the Lead Borrower has received gross proceeds of not less than $100,000,000 in Aggregate Commitments 1,500,000,000 from borrowings under the Term Loan Facility and the Lead Arrangers shall have been received from Lenders all documents in connection therewith (other than the fee letter), which shall be on terms and conditions reasonably satisfactory to the Lead Lenders executing Arrangers (it being agreed that the terms and conditions of the Term Loan Facility as set forth in commitment letter dated as of January 10, 2013 (as amended February 19, 2012) are reasonably acceptable to the Lead Arrangers); 115
(m) the Administrative Agent shall have received the Term Loan Intercreditor Agreement, duly executed by the applicable parties;
(n) the NAI Sale shall have occurred on terms and conditions reasonably satisfactory to the Lead Arrangers and the Lead Arrangers shall have received copies of all documents in connection therewith, duly executed by the parties thereto (it being agreed that the terms and conditions of the NAI Sale as set forth in the Acquisition Agreement (including all schedules, exhibits and annexes thereto) are reasonably acceptable to the Lead Arrangers);
(o) the SVU 2014 Note Repayment shall have occurred on terms and conditions reasonably satisfactory to the Lead Arrangers and the Lead Arrangers shall have received all documents in connection therewith; and
(p) the Lead Arrangers shall have received evidence, in form and substance reasonably satisfactory to the Lead Arrangers, of the payment in full of all obligations of Lead Borrower and its Subsidiaries under the Existing Receivables Transfer Agreements, the repurchase by Lead Borrower of all receivables sold thereunder, and the termination of all Liens securing obligations under the Existing Receivables Transfer Agreements. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this AgreementSection 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 Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Supervalu Inc)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies copies sent by electronic transmission (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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerAgreement;
(ii) a Note Notes executed by the Borrowers in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party of the Borrowers is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) such financial information relating to the Borrowers and their Subsidiaries as the Administrative Agent may request;
(vi) a favorable opinion of each of Xxxxxx & Xxxxxx Xxxxxxx, LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each caseToro Luxembourg, addressed to the Administrative Agent and each Lender and Lender, substantially in the form attached at Exhibit F or as otherwise reasonably satisfactory to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effectso required;
(viii) a certificate from signed by a Responsible Officer of Toro certifying (A) that the chief financial officer conditions specified in Sections 4.02(a) and (b) have been satisfied; (B) that there has been no event or circumstance since the date of the Lead BorrowerAudited Financial Statements that has resulted or could reasonably be expected to result in, satisfactory either individually or in form the aggregate, a Material Adverse Effect; (C) there does not exist any pending or threatened action, suit, investigation or proceeding in any court or before any arbitrator or Governmental Authority that (x) would, if determined adversely to Toro or any Subsidiary, materially and substance adversely affect Toro or Toro and its Subsidiaries, taken as a whole, or (y) purports to affect any transaction contemplated under this Agreement or any Loan Document or the Administrative Agent, attesting ability of any Borrower to perform its respective obligations under this Agreement or any Loan Document; and (D) the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated herebycurrent Debt Ratings;
(ix) the Security Documentsduly completed Compliance Certificate as of June 30, each duly executed 2021, signed by the applicable Loan Partiesa Responsible Officer of Toro;
(x) evidence that the Existing Term Loan Credit Agreement has been or concurrently with the Closing Date is being terminated, all other indebtedness thereunder has been paid and satisfied in full and all Liens if any securing obligations under the Existing Term Loan Documents, each duly executed by Credit Agreement have been or concurrently with the applicable Loan Parties; andClosing Date are being released;
(xi) all documents (A) upon the reasonable request of any Lender made at least ten days prior to the Closing Date, the Borrowers shall have provided to such Lender the documentation and instrumentsother information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recordedAct, in each case, case at least two days prior to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.Closing Date; and
Appears in 1 contract
Samples: Credit Agreement (Toro Co)
Conditions of Initial Credit Extension. The obligation effectiveness of the LC Issuer amendment and each Lender restatement of the Existing Credit Agreement as set forth herein and the obligations of the Lenders to make its initial Credit Extension hereunder is Loans on the Restatement Date are each subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated as of the Closing Restatement Date (or, in the case of certificates of governmental officials, a recent date before the Closing Restatement Date) and each in form and substance satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement sufficient in number for distribution to from the Borrower, the Administrative Agent, Agent and each Lender and the Lead BorrowerLender;
(ii) executed counterparts of the Reaffirmation Agreement from each Guarantor;
(iii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iiiiv) such customary certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(ivv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require and as are customary for transactions of this type to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, and in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(vvi) a favorable opinion of each of Xxxxxx (A) Xxxxxxx & Xxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine (B) Xxxxx & Xxxxx Xxxxxxx LLP, Wisconsin counsel to the Loan Parties, (C) Xxxxxxxxxxx & Xxxxx, P.A., Minnesota counsel to the Loan Parties, (D) Xxxxxxxx Xxxxxxx LLP, Georgia counsel to the Loan Parties, and (E) Xxxxx Xxxx LLP, Missouri counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection are customary for financings of the Liens in favor of the Collateral Agent)this type;
(vivii) an officer’s certificate prepared by the chief financial officer of the Borrower in the form of Exhibit H hereto certifying that the Borrower and its Subsidiaries, on a consolidated basis, after giving effect to the Transactions, are Solvent;
(viii) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied satisfied; and
(after giving effect ix) an initial Request for Credit Extension with respect to the consummation of Credit Extensions to be made on the transactions contemplated under this Agreement Restatement Date in accordance with the requirements hereof.
(b) All accrued costs, fees and expenses (including reasonable and documented legal fees and expenses and the fees and expenses of any other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (Badvisors) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance other compensation payable to the Administrative Agent, attesting the Arrangers or any Lender required to be paid on the Restatement Date pursuant to the Solvency of BofA Fee Letter and/or the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recordedCoBank Fee Letter, in each case, to the reasonable satisfaction of extent invoiced at least two (2) Business Days prior to the Collateral Agent and Restatement Date (or such later date as the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments Borrower may reasonably agree), shall have been received from Lenders other than the Lead Lenders executing this Agreementpaid.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall will be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyCompany, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerCompany;
(ii) a Note Notes executed by the Borrowers Company in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party the Company as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party it is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party the Company is duly organized or formed, and that each Loan Party the Company is validly existing, existing and in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectstanding;
(v) a favorable opinion opinions of each the executive vice president, general counsel and secretary of the Company and Xxxxxx Xxxxxxxx Xxxxx & Xxxxxx Xxxxxxxx LLP, special outside counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each caseCompany, addressed to the Administrative Agent and each Lender and as Lender, with respect to such matters concerning the Loan Parties and Company, the Loan Documents and such other matters as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)shall request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement and the Subsidiary Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerBorrower (it being understood and agreed that the Subsidiary Guaranty shall be executed and delivered by each Domestic Subsidiary that is not otherwise an Excluded Subsidiary as of the Closing Date);
(ii) a Note Notes executed by the Borrowers Borrower in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and and, solely in the case of the Borrower, qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx (A) DLA Piper LLP, special New York counsel to the Loan Parties, and Cravath(B) Xxxxxx Xxxxxxxxxx, Swaine & Xxxxx LLP, counsel to General Counsel of the Loan PartiesBorrower, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such those matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there have not has been any material change no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the capital structure aggregate, a Material Adverse Effect;
(viii) a pro forma consolidated balance sheet as of March 31, 2010 and capitalization a pro forma statement of income for the Lead nine month period ended March 31, 2010, in each case for the Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies giving effect to all elements of the Spin-Off Agreements are attached thereto and (Facquisition(s) that previously disclosed to the Spin-Off shall have occurred, Arranger and the senior credit facilities Lenders which either have been consummated since June 2, 2010 or are scheduled to be consummated within a reasonable period of the B&N Parties have closed on or substantially simultaneously with time following the Closing Date;
(viiix) evidence that all insurance a copy of the notice the Borrower is required to be maintained deliver the Holders (as such term is defined in the Note Purchase Agreement) pursuant to Section 6.14, which notice shall (A) inform the Loan Documents and all endorsements in favor Holders of the Collateral Agent required Borrower’s determination that a change in generally accepted accounting principles has occurred, (B) request an amendment to the definition of “Consolidated EBITDA” contained in the Note Purchase Agreement such that the revised definition therein will be substantively the same as the definition of “Consolidated EBITDA” contained in this Agreement and (C) until such an amendment is agreed to, suspend the applicability of such change in generally accepted accounting principles to the Borrower’s financial covenant calculations under the Loan Documents have been obtained and are in effect;
Note Purchase Agreement (viii) a certificate from such notice, the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;“NPA Notice”).
(x) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all other Loan Documents, each duly executed by the applicable Loan Parties; and
Liens (xiif any) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created securing obligations under the Loan Documents and all such documents and instruments shall Existing Credit Agreement have been so filed, registered or recorded, in each case, to concurrently with the reasonable satisfaction of the Collateral Agent and the ArrangersClosing Date are being released.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, 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). 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 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction (or waiver) of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (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 reasonably satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement and the Reaffirmation And Assumption Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note, provided, that each such Lender has returned its Note received pursuant to the Existing Credit Agreement, if any, as required by Section 2.11;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion opinions of each of Xxxxxx (A) Vxxxxx & Xxxxxx LLPExxxxx L.L.P., outside counsel to the Loan PartiesBorrower, and Cravath(B) Jxxx Xxxxxx, Swaine & Xxxxx LLP, counsel to General Counsel of the Loan PartiesBorrower, in each case, case addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit F and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent or the Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a duly completed Borrowing Base Certificate as of December 31, 2007;
(ix) a duly completed Compliance Certificate as of December 31, 2007, signed by a Responsible Officer of the Borrower;
(x) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and all endorsements is in favor effect;
(xi) evidence that, subject to the initial Borrowing hereunder, the excess of the Collateral Agent required Existing Lenders’ Existing Loans made under the Loan Documents Original Credit Agreement which shall not remain outstanding on and after the Closing Date as Loans under this Agreement shall have been repaid in full;
(xii) evidence that all of the Aggregate Commitments shall have been obtained and are in effect;effect ; and
(viiixiii) a certificate from the chief financial officer of the Lead Borrowersuch other assurances, satisfactory in form and substance to certificates, documents, consents or opinions as the Administrative Agent, attesting the L/C Issuer or the Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Solvency Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date.
(d) All governmental and third party approvals (including landlords’ and other consents) necessary in connection with the continuing operations of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to and the transactions contemplated hereby shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the financing contemplated hereby;.
(ixe) The Administrative Agent shall have received the Security results of a recent lien, tax lien, judgment and litigation search in each of the jurisdictions or offices in which UCC financing statements or other filings or recordations should be made to evidence or perfect (with the priority required under the Loan Documents) security interests in the Collateral, each duly executed and such search shall be reasonably satisfactory to the Lenders.
(f) Each document (including, without limitation, any UCC financing statement) required by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents Guarantee and instruments, including Uniform Commercial Code financing statements, required by Collateral Agreement or under law or reasonably requested by the Collateral Administrative Agent and the Arrangers to be filed, registered or recorded in order to create or perfect in favor of the first priority Liens intended Administrative Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral described therein, prior and superior in right to be created under the Loan Documents and all such documents and instruments any other Person (other than with respect to Permitted Liens), shall have been so filed, registered or recorded, in each case, recorded or shall have been delivered to the reasonable satisfaction of the Collateral Administrative Agent and the Arrangersin proper form for filing, registration or recordation.
(bg) Not less than $100,000,000 There shall be no litigation, public or private, or administrative proceedings, governmental investigation or other legal or regulatory developments, actual or threatened, that, singly or in Aggregate Commitments the aggregate, would reasonably be expected to result in a Material Adverse Effect on the Borrower and its Subsidiaries, taken as a whole, or would materially and adversely affect the ability of the Borrower and its Subsidiaries to fully and timely perform their respective obligations under the Loan Documents, or the rights and remedies of the Administrative Agent or the Lenders under the Loan Documents. 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 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 Administrative Agent shall have been received written notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Holly Corp)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
: (a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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:
Agent and each of the Lenders: (i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each Loan Party and the Lead Borrower;
Parent; (ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party and the Parent as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party or the Parent is a party or is to be a party;
; (iviii) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party and the Parent is duly organized or formed, and that each Loan Party is validly existing, existing and in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except (to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
good standing is applicable) in the jurisdiction of its organization; (viv) a favorable customary opinion of each of Xxxxxx (i) Xxxxxxx Xxxxxxx & Xxxxxx Xxxxxxxx LLP, counsel to the Loan Parties, Parties and Cravath, Swaine & Xxxxx LLP, the Parent and (ii) local counsel to the Loan PartiesParties and the Parent located in Bermuda, in Ireland and Nevada, each case, addressed to the Administrative Agent and each Lender Lender, in form and as substance reasonably satisfactory to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request Agent; and (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(viv) a certificate signed by a Responsible Officer of the Lead Borrower Agent certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this satisfied. 83 Xxxxx Xxxxxx Amended and Restated Credit and Guaranty Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.NYDOCS03/1067767.15
Appears in 1 contract
Samples: Credit and Guaranty Agreement (James Hardie Industries PLC)
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative AgentLender’s receipt of the following, each of which shall be originals or telecopies facsimiles (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 AgentLender and its legal counsel:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerCompany;
(ii) if requested by the Lender, a Note executed by each of the Borrowers in favor of each Lender requesting a NoteBorrowers;
(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 Lender may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent Lender may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party of the Borrowers and each of the Guarantors is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx LLPPxxxxxx Coie, counsel to the Loan Parties, and Cravathof such foreign counsel as is reasonably required by the Lender, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit E and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Lender may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor a certificate signed by a Responsible Officer of each of the Collateral Agent required under Borrowers certifying that the Loan Documents conditions specified in Sections 4.02(a) and (b) have been obtained and are in effectsatisfied;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis Compliance Certificate dated as of the Closing Benchmark Date after giving effect to signed by a Responsible Officer of the transactions contemplated herebyCompany;
(ix) evidence that the Security DocumentsExisting Credit Agreement has been or concurrently with the Closing Date is being terminated, each duly executed by all amounts thereunder having been paid, and all Liens securing obligations under the applicable Loan Parties;Existing Credit Agreement have been or substantially concurrently with the Closing Date are being released; and
(x) all such other Loan Documentsassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or Lender reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been received from Lenders other than paid.
(c) The Company shall have paid all Attorney Costs of the Lead Lenders executing this AgreementLender to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs 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 Company and the Lender).
Appears in 1 contract
Samples: Credit Agreement (Gymboree Corp)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 Agent and each of the Administrative AgentLenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, action and incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each its respective jurisdiction where its ownership, lease of organization or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectformation;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel Parties acceptable to the Loan Parties, in each case, Agent addressed to the Administrative Agent and each Lender and Lender, as to such the matters set forth concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect in form and substance satisfactory to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) evidence a certificate signed by a Responsible Officer of Borrower certifying that all insurance required to be maintained pursuant to the Loan Documents conditions specified in Sections 4.02(a) and all endorsements in favor of the Collateral Agent required under the Loan Documents (b) have been obtained and are in effectsatisfied;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis duly completed Compliance Certificate as of the Closing Date after giving effect last day of the fiscal quarter of Borrower most recently ended prior to the transactions contemplated hereby;Closing Date, signed by a Responsible Officer of Borrower; and
(ix) such other assurances, certificates, documents, consents or opinions as Agent, the Security Documents, each duly executed by L/C Issuer or the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the may require with reasonable satisfaction of the Collateral Agent and the Arrangersadvance notice.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by Agent, Borrower shall have paid all fees, charges and disbursements of counsel to Agent, 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 Borrower and Agent), in either case, to the extent invoiced prior to the Closing Date. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in 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 Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyBorrower or the Guarantor, as applicable, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerGuaranty;
(ii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers a secretary or assistant secretary of each Loan Party or its general partner as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a partyDocuments;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that the general partner of each Loan Party is validly existing, duly organized and in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(v) a favorable opinion of each of Xxxxxx Xxxxx & Xxxxxx LLPXxxxxxx, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens set forth in favor of the Collateral Agent)Exhibit G;
(vi) a favorable opinion of Xxxxx Lord Bissell & Liddell LLP, special New York counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit H;
(vii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all party and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effectso required;
(viii) a certificate from the chief financial officer signed by a Responsible Officer of the Lead BorrowerBorrower certifying that (A) no Default exists, satisfactory in form (B) the representations and substance to the Administrative Agent, attesting to the Solvency warranties of the Loan Parties on a consolidated basis as Borrower contained in Article V are true and correct, and (C) there has been no event or circumstance since the date of the Closing Date after giving Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, business, properties, assets, liabilities (actual or contingent), condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole; (2) a material impairment of the ability of the Borrower to perform its obligations under any Loan Document to which it is a party; or (3) a material adverse effect upon the transactions contemplated herebylegality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party;
(ix) a certificate signed by a Responsible Officer of the Security DocumentsGuarantor certifying that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, each duly executed by either individually or in the applicable aggregate, (1) a material adverse change in, or a material adverse effect upon, the operations, business, properties, assets, liabilities (actual or contingent), condition (financial or otherwise) or prospects of the Guarantor and its Subsidiaries taken as a whole; (2) a material impairment of the ability of the Guarantor to perform its obligations under any Loan PartiesDocument to which it is a party; or (3) a material adverse effect upon the legality, validity, binding effect or enforceability against the Guarantor of any Loan Document to which it is a party;
(x) evidence of termination of all other Loan Documents, each duly executed by commitments to extend credit under the applicable Loan PartiesExisting Credit Agreement and repayment of all amounts owed thereunder prior to or simultaneously with the Closing Date; and
(xi) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender, or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs 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). Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (ONEOK Partners LP)
Conditions of Initial Credit Extension. The obligation effectiveness of this Agreement and the obligations of the LC Issuer Lenders and each Lender L/C Issuers to make its their initial Credit Extension Extensions hereunder is are subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement, the Security Agreement, the Guaranty Amendment, the Pledge Agreement Amendment and the Reaffirmation Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerBorrower Agent;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications from the Secretary of State (or similar, applicable Governmental Authority) as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in its state of incorporation, formation or organization, and each jurisdiction where state in which its ownershipprincipal offices are located, lease or operation as the case may be, as of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectrecent date;
(v) a (A) favorable opinion opinions of each of Xxxxxx & Xxxxxx (i) Xxxxx Xxxxxxx LLP, New York counsel to the Loan Parties, addressed to the Administrative Agent, each L/C Issuer and Cravatheach Lender, Swaine as to the matters set forth in Exhibit H-1, (ii) Bass, Xxxxx & Xxxxx LLPXxxx PLC, Tennessee counsel to the Loan Parties, addressed to the Administrative Agent, each L/C Issuer and each Lender, as to the matters set forth in each caseExhibit H-2, (iii) Vorys, Xxxxx, Xxxxxxx & Xxxxx LLP, Ohio counsel to the Loan Parties, addressed to the Administrative Agent Agent, each L/C Issuer and each Lender and Lender, as to such the matters concerning set forth in Exhibit H-3, (iv) Law Offices of Xxxxx X. Xxxxxxx, LLC, Surface Transportation Board counsel to the Loan Parties Parties, as to matters set forth in Exhibit H-4, and (v) XxXxxxxx Xxxxxxxx LLP, Canadian counsel to the Loan Parties, addressed to the Administrative Agent, each L/C Issuer and each Lender, as to the matters set forth in Exhibit H-5;
(vi) (A) the unaudited balance sheets as of July 31, 2009 and the related statements of income and cash flow for such month and for the portion of the Fiscal Year then elapsed, on consolidated bases for Borrowers and Subsidiaries, setting forth in comparative form corresponding figures for the preceding Fiscal Year and certified by the chief financial officer of Borrower Agent as prepared in accordance with GAAP and fairly presenting the financial position and results of operations for such month and period, subject to normal year-end adjustments and the absence of footnotes, and (ii) the projections of Borrowers and the Subsidiaries for the period of August 1, 2009 through December 31, 2012 (presented on a monthly basis for the period of August 1, 2009 through December 31, 2010 and on an annual basis thereafter) evidencing Borrowers’ ability to comply with the financial covenant set forth in Section 7.12;
(vii) a certificate of a Responsible Officer of each Loan Documents as the Administrative Agent may reasonably request Party certifying that all Governmental Approvals and all consents of other Persons, in each case that are necessary or advisable (including, without limitation, with respect to enforceability, due authorization and perfection the necessary consents of the Liens Existing Lenders to amend and restate the Existing Credit Agreement) in favor connection with the transactions contemplated by the Loan Documents and each of the Collateral Agent)foregoing shall be in full force and effect;
(viviii) a certificate signed by a Responsible Officer of the Lead each Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement satisfied, and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2March 31, 2015, 2009 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, a certificate signed by a Responsible Officer of each duly executed by the applicable Loan PartiesBorrower certifying that such Borrower is Solvent;
(xA) delivery to the Administrative Agent of the certificates, if any, evidencing the Equity Interests in the Borrowers’ Subsidiaries pledged under the Pledge Agreement on the Closing Date, together with undated stock powers duly executed in blank with respect thereto, (B) delivery to the Administrative Agent of a Global Intercompany Note executed by and among the Borrowers and their respective Subsidiaries, accompanied by instruments of transfer undated and endorsed in blank and (C) acknowledgments of all filings or recordations necessary or desirable to perfect the Administrative Agent’s Liens in the Collateral, as well as UCC and Lien searches and other evidence satisfactory to the Administrative Agent that such Liens are the only Liens upon the Collateral (other than as expressly permitted by the Collateral Documents);
(xi) duly executed agreements establishing each Dominion Account and related lockbox, in form and substance, and with financial institutions, reasonably satisfactory to the Administrative Agent;
(xii) (A) copies of policies or certificates of insurance for the insurance policies carried by Borrowers, all in compliance with the Loan Documents and (B) the Insurance Assignment required under Section 6.07, in form and substance reasonably satisfactory to the Administrative Agent;
(xiii) all field examinations, Equipment Appraisals and such other Loan Documentsreports, each duly executed audits or certifications as the Administrative Agent may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent;
(xiv) such documentation and evidence as the Administrative Agent may reasonably request in order for it to carry out all “know your customer” or other checks (including checks with the Office of Foreign Assets Control of the U.S. Treasury Department) in relation to the identify of the Borrowers and their officers, that it is required to carry out in relation to the transactions contemplated by this Agreement, and the applicable Loan PartiesAdministrative Agent shall be satisfied with the results of all such “know your customer” or other checks;
(xv) a Borrowing Base Certificate based on July 31, 2009 accounting records; and
(xixvi) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as the Administrative Agent, the L/C Issuers, the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 Each Borrower shall have obtained all Governmental Approvals and all consents of other Persons, in Aggregate Commitments each case that are necessary or advisable (including, without limitation, the necessary consents of the Existing Lenders to amend and restate the Existing Credit Agreement) in connection with the transactions contemplated by the Loan Documents and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to the Administrative Agent.
(c) There shall be no any action, suit, investigation or proceeding pending or, to the knowledge of the Borrowers, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(d) Any fees required to be paid on or before the Closing Date shall have been paid.
(e) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable fees, 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 reasonable 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 Borrowers and the Administrative Agent).
(f) The Closing Date shall have occurred on or before August 31, 2009.
(g) Upon giving effect to (i) all fees and expenses incurred in connection herewith that are required to be paid on or before the Closing Date and (ii) the prepayment of the Existing Loans with the remaining proceeds of the refund from SAP America, Inc. received in June 2009, Availability shall be at least $20,000,000. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) such certificates executed counterparts of the that certain Omnibus Reaffirmation, Ratification and Amendment Agreement, duly executed by the Borrower and Guarantor, together with:
(A) results of lien searches for filings in the jurisdictions referred to in Section 4.01(a)(iii)(A) that name the Borrower as debtor, and
(B) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement has been taken (including receipt of duly executed payoff letters, UCC-3 termination statements and landlords’ and bailees’ waiver and consent agreements);
(iv) [reserved];
(v) certified copies of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(ivvi) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formedincorporated and in good standing in Bermuda, and including without limitation certificates of compliance issued by the Registrar of Companies of Bermuda for each Loan Party, dated a date close to the date of this Agreement, stating that each Loan Party is validly existing, duly incorporated and in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation under the Companies Xxx 0000 of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse EffectBermuda;
(vvii) a favorable opinion opinions of each of (1) Xxxxxx & Xxxxxx Xxxx Xxxxxxxxx US LLP, counsel to the Loan Parties, (2) Xxxxxxx Xxxx & Xxxxxxx Limited, special Bermuda counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, (3) appropriate local counsel to the Loan Parties, in each case, case addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit F and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(viviii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization stating that no such consents, licenses or approvals are so required;
(ix) a certificate signed by a Responsible Officer of the Lead Borrower and its Subsidiaries from the Initial Cap Table, Guarantor certifying (E) that executed copies of the Spin-Off Agreements are attached thereto and (FA) that the Spin-Off shall conditions specified in Sections 4.02(a) and (b) have occurredbeen satisfied, and (B) that there has been no event or circumstance since the senior credit facilities date of the B&N Parties have closed on Audited Financial Statements that has had or substantially simultaneously with could be reasonably expected to have, either individually or in the Closing Dateaggregate, a Material Adverse Effect;
(viix) a duly completed Compliance Certificate as of the last day of the respective fiscal quarters of the Borrower and the Guarantor ended on March 31, 2022, signed by Responsible Officers of the Borrower and the Guarantor;
(xi) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained, is in effect and all contains endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to naming the Administrative Agent, attesting to the Solvency on behalf of the Loan Parties on Lenders, as a consolidated basis joint assured and/or co-loss payee, as of the Closing Date after giving effect to the transactions contemplated herebycase may be, under such insurance;
(ixxii) evidence that all filings, recordations and searches necessary or desirable to perfect the Security Documents, each duly executed Lien on any property granted to or held by the applicable Administrative Agent under any Loan PartiesDocument shall have been completed, and that all related filing and recording fees and taxes shall have been duly paid;
(xxiii) all other Loan Documents, each a Borrowing Base Certificate duly executed certified by a Responsible Officer of the applicable Loan PartiesBorrower relating to the initial Credit Extension; and
(xixiv) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer or the Required Lenders reasonably may require.
(i) All fees required by law or reasonably requested by to be paid to the Collateral Administrative Agent and the Arrangers to be filed, registered on or recorded to create or perfect before the first priority Liens intended to be created under the Loan Documents and all such documents and instruments Closing Date shall have been so filed, registered or recorded, in each case, paid and (ii) all fees required to be paid to the reasonable satisfaction of Lenders on or before the Collateral Agent and the ArrangersClosing Date shall have been paid.
(bc) Not less than $100,000,000 Unless waived by the Administrative Agent, the Borrower shall have paid all fees, 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).
(d) The Administrative Agent shall have completed a due diligence investigation of the Guarantor, the Borrower and their respective Subsidiaries in Aggregate Commitments scope, and with results, satisfactory to the Administrative Agent and shall have been given such access to the management, records, books of account, contracts and properties of the Guarantor, the Borrower and their respective Subsidiaries and shall have received such financial, business and other information regarding each of the foregoing persons and businesses as they shall have requested, including, without limitation, information as to possible contingent liabilities, tax matters, collective bargaining agreements and other arrangements with employees, the annual (or other audited); and no changes or developments shall have occurred, and no new or additional information, shall have been received from or discovered by the Administrative Agent or the Lenders regarding the Guarantor, the Borrower or their respective Subsidiaries or the transactions contemplated hereby after March 31, 2022 that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, and nothing shall have come to the attention of the Administrative Agent or the Lenders to lead them to believe that the transactions contemplated hereby will have a Material Adverse Effect.
(e) No action, suit, investigation or proceeding is pending or, to the knowledge of the Guarantor or the Borrower, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect.
(f) All interest and fees accrued under the Existing Credit Agreement through the Closing Date shall have been paid in full by the Borrower, and the Administrative Agent shall have received reasonably satisfactory evidence thereof.
(g) Upon the reasonable request of any Lender made at least seven (7) days prior to the Closing Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other than information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Lead Lenders executing PATRIOT Act, in each case at least five (5) days prior to the Closing Date and (ii) at least five (5) days prior to the Closing Date, to the extent that the Borrower or Guarantor qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification.
(h) No Default shall have occurred and be continuing under the Existing Credit Agreement immediately before the Closing Date or under this Agreement immediately after the Closing Date. 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 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, including the Pledge Agreement and the Security Agreement.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies copies sent by electronic transmission (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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerAgreement;
(ii) a Note Notes executed by the Borrowers in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party of the Borrowers is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) such financial information relating to the Borrowers and their Subsidiaries as the Administrative Agent may request;
(vi) a favorable opinion of each of Xxxxxx & Xxxxxx Xxxxxxx, LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each caseToro Luxembourg, addressed to the Administrative Agent and each Lender and Lender, substantially in the form attached at Exhibit F or as otherwise reasonably satisfactory to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effectso required;
(viii) a certificate from signed by a Responsible Officer of Toro certifying (A) that the chief financial officer conditions specified in Sections 4.02(a) and (b) have been satisfied; (B) that there has been no event or circumstance since the date of the Lead BorrowerAudited Financial Statements that has resulted or could reasonably be expected to result in, satisfactory either individually or in form the aggregate, a Material Adverse Effect; (C) there does not exist any pending or threatened action, suit, investigation or proceeding in any court or before any arbitrator or Governmental Authority that (x) would, if determined adversely to Toro or any Subsidiary, materially and substance adversely affect Toro or Toro and its Subsidiaries, taken as a whole, or (y) purports to affect any transaction contemplated under this Agreement or any Loan Document or the Administrative Agent, attesting ability of any Borrower to perform its respective obligations under this Agreement or any Loan Document; and (D) the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated herebycurrent Debt Ratings;
(ix) the Security Documentsduly completed Compliance Certificate as of June 30, each duly executed 2021, signed by the applicable Loan Partiesa Responsible Officer of Toro;
(x) evidence that the Existing Term Loan Credit Agreement has been or concurrently with the Closing Date is being terminated, all indebtedness thereunder has been paid and satisfied in full and all Liens if any securing obligations under the Existing Term Loan Credit Agreement have been or concurrently with the Closing Date are being released;
(A) upon the reasonable request of any Lender made at least ten days prior to the Closing Date, the Borrowers shall have provided to such Lender the documentation and other Loan Documentsinformation so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Act, in each duly executed by case at least two days prior to the applicable Loan PartiesClosing Date; and
(B) at least five days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower; and
(xi) all documents such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require. Notwithstanding the foregoing, with respect to Toro Luxembourg, the receipt of such items referred to above in clauses (iii), (iv), (vi) and instruments(vii) are not required to be delivered on the Closing Date, including Uniform Commercial Code financing statementsbut instead need only be delivered in advance of a request for a Borrowing by Toro Luxembourg under Section 2.01 (and, required by law or reasonably requested for the avoidance of doubt, Toro Luxembourg may not request a Borrowing until such items have been received by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the ArrangersAdministrative Agent).
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, Toro shall have paid all fees, charges and disbursements of counsel (directly to such counsel if requested by the Administrative Agent) to 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 Toro and the Administrative Agent). Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Toro Co)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerCompany;
(ii) a Note Notes executed by the Borrowers in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Company and each other Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx Xxxxx & Xxxxxx Xxxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit H and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)be requested;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viiiix) a certificate from receipt by the chief financial officer Administrative Agent and JPMorgan of satisfactory results of recent lien and other searches required in each of the Lead Borrower, satisfactory in form and substance to jurisdictions where the Administrative Agent, attesting to Borrowers are located (within the Solvency meaning of Section 9-307 of the Loan Parties Uniform Commercial Code in effect on a consolidated basis as the date hereof in the State of New York, or the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the corresponding code or statute of any other applicable Loan Partiesjurisdiction);
(x) all such other Loan Documentsassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan PartiesAdministrative Agent, the L/C Issuer, or the Swing Line Lender reasonably may require; and
(xib) Any fees required to be paid on or before the Closing Date shall have been
(c) Unless waived by the Administrative Agent, the Company shall have paid all documents fees, charges and instruments, including Uniform Commercial Code financing statements, required by law or reasonably disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Collateral Agent 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 Company and the Arrangers Administrative Agent). 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 this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be filedsatisfied with, registered each document or recorded to create or perfect the first priority Liens intended other matter required thereunder to be created under consented to or approved by or acceptable or satisfactory to a Lender unless the Loan Documents and all such documents and instruments Administrative Agent shall have been so filed, registered or recorded, in each case, received notice from such Lender prior to the reasonable satisfaction of the Collateral Agent and the Arrangersproposed Closing Date specifying its objection thereto.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC each Fronting Bank, each L/C Issuer and each Lender to make its their respective initial Credit Extension Extensions hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies, facsimile, “.pdf” or telecopies other electronically transmitted copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Restatement Effective Date) and each in form and substance satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement sufficient Agreement, in such number for distribution to as the Administrative Agent, each Lender and the Lead BorrowerAgent shall request;
(ii) a Revolving Note executed by the Borrowers Borrower in favor of each Lender requesting a Revolving Note;
(iii) a Term Loan Note executed by the Borrower in favor of each Lender requesting a Term Loan Note;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(ivv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or such jurisdictions as the conduct of its business requires such qualification, except to the extent that failure to do so could not Administrative Agent may reasonably be expected to have a Material Adverse Effectrequest;
(vvi) (A) a favorable opinion of each of Xxxxxx McAfee & Xxxxxx LLPXxxx, outside counsel to the Loan PartiesBorrower, (B) a favorable opinion of R. Xxxxx Xxxxxxxx, executive vice president and Cravathgeneral counsel of the Borrower and (C) a favorable opinion of Xxxxxxx (Bermuda) Limited, Swaine & Xxxxx LLP, special Bermuda counsel to the Loan PartiesTMK, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent or the Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vivii) a certificate signed by of a Responsible Officer or Secretary of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses and regulatory or other approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effectso required;
(viii) a certificate from the chief financial officer signed by a Responsible Officer of the Lead BorrowerBorrower certifying (A) that the conditions specified in Section 4.01(e) and (f) and Sections 4.02(a) and (b) have been satisfied, satisfactory (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (C) the current Debt Ratings.
(ix) evidence that prior to or concurrently with the Restatement Effective Date (A) all outstanding obligations under the Existing Credit Agreement are paid and (B) all outstanding letters of credit issued under the Existing Credit Agreement are being (i) surrendered for cancellation or (ii) amended and/or continued, as applicable, pursuant to Section 2.03(n) hereof;
(x) a duly completed compliance certificate as of March 31, 2016 in form and substance satisfactory to the Administrative Agent, attesting to the Solvency signed by a Responsible Officer of the Loan Parties on a consolidated basis Borrower and evidencing compliance as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Partiessuch date with Section 7.11 hereof; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by except as the Collateral Administrative Agent and the Arrangers to be filedBorrower shall otherwise agree, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments Administrative Agent shall have been so filed, registered or recorded, received evidence (which the Borrower shall deliver) in each case, to the reasonable satisfaction form of the Collateral Agent and most current “Bank List” of banks approved by the ArrangersNAIC, that each Lender is an NAIC Approved Bank; and
(xii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the Swing Line Lender, the L/C Administrator, or the Required Lenders reasonably may require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Restatement Effective Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Restatement Effective Date.
(d) The Restatement Effective Date shall have occurred on or before May 20, 2016.
(e) There shall not have occurred a material adverse change (i) in the business, assets, properties, liabilities (actual or contingent), operations, conditions (financial or otherwise) or prospects of either of the Loan Parties, or the Borrower and its Subsidiaries, taken as a whole, since December 31, 2015 or (ii) in the facts and information regarding such entities as represented by the Borrower or any of its Subsidiaries, or any representatives of any of them, to date.
(f) The absence of any action, suit, investigation or proceeding pending or, to the knowledge of the Borrower or any of its Subsidiaries, threatened, in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect.
(g) Each Several Letter of Credit described on Schedule 2.03 shall have been (or shall substantially contemporaneously be) amended to remove, as applicable, the Existing Lenders as issuers thereof and to reflect as the issuers thereof the Lenders in accordance with their Applicable Percentages as reflected on Schedule 2.01 hereto (or shall have been cancelled without a drawing thereon). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Restatement Effective Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Torchmark Corp)
Conditions of Initial Credit Extension. The obligation of the LC Issuer Issuing Bank and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s and the Term Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies other electronic image scan transmission (e.g., “pdf” or “tif ” via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty or the Lenders, as applicable, 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, the Term Agent and the Lenders:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, the Term Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion customary opinions, in each case addressed to the Agent, the Term Agent and each Lender, of each of Xxxxxx O’Melveny & Xxxxxx LLPMxxxx LLP and Mxxxxxxx, MxXxxx & Sxxx, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent and the Term Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate (or certificates) signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (bSections 4.02(a) and (c4.02(b) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate payoff letter from the chief financial officer of agent for the Lead Borrower, lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Administrative Agent, attesting to Agent and the Solvency of Term Agent evidencing that the Loan Parties on a consolidated basis as of Existing Credit Agreement has been or concurrently with the Closing Date after giving effect to is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the transactions contemplated herebyExisting Credit Agreement have been or concurrently with the Closing Date are being released;
(ix) the Security DocumentsDocuments and certificates evidencing any Equity Interests being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xi) (A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Agent and the Term Agent of all Inventory of the Loan Parties, the results of which are satisfactory to the Agent and the Term Agent and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Agent and the Term Agent1; 1 Note to GACP/Pxxx Xxxxxxxx: please confirm that the appraisals/reports that the Term Agent has received are satisfactory to the Term Agent and the third party appraiser is acceptable to the Term Agent.
(xii) results of searches or other evidence reasonably satisfactory to the Agent and the Term Agent (in each case dated as of a date reasonably satisfactory to the Agent and the Term Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, and releases or subordination agreements satisfactory to the Agent and the Term Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Agent and the Term Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents Documents, and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Agent (B) the Credit Card Notifications and Blocked Account Agreements required pursuant to Section 6.13 hereof, (C) control agreements with respect to the Loan Parties’ securities and investment accounts, and (D) Collateral Access Agreements as required by the Agent;
(xiv) evidence that all other actions that the Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken;
(xv) an appraisal of each of the properties described in the Mortgages complying with the requirements of FIRREA by a third party appraiser acceptable to the Agent and otherwise in form and substance satisfactory to the ArrangersAgent; and
(xvi) such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.
(b) Not After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability (without giving effect to the Availability Block) shall be not less than $100,000,000 12,000,000.
(c) The Agent and the Term Agent shall have received a Borrowing Base Certificate dated the Closing Date and giving effect to the transactions contemplated to occur on the Closing Date, with Collateral relating to the period ended on the immediately preceding Saturday, and executed by a Responsible Officer of the Lead Borrower.
(d) The Agent and the Term Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the Audited Financial Statements.
(e) The Agent and the Term Agent shall be reasonably satisfied that the Real Estate Eligibility Requirements, with respect to the Baldwyn Real Estate, have been satisfied. Without limiting the foregoing, the Agent and the Term Agent shall have received with respect to such Real Estate (i) a Phase I Environmental Site Assessment in Aggregate Commitments accordance with ASTM Standard E1527-05, in form and substance reasonably satisfactory to the Agent and the Term Agent, from an environmental consulting firm reasonably acceptable to the Agent and the Term Agent, and (ii) an appraisal setting forth the Lease Value and Fee Simple Value of such Real Estate by a third party professional appraiser reasonably acceptable to the Agent and the Term Agent and otherwise in form and substance reasonable satisfactory to the Agent and the Term Agent.
(f) The Agent and the Term Agent shall have received and be reasonably satisfied with (i) a detailed forecast for the period commencing on the Closing Date and ending with the end of the then next Fiscal Year, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP and consistent with the Loan Parties’ then current practices, (ii) an annual forecast for the Fiscal Years 2015 through 2017, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow, each prepared in conformity with GAAP and consistent with the Loan Parties’ then current practices, (iii) preliminary (draft) 10K for Fiscal Year 2014, (iv) Thirteen Week Cash Flow reviewed by the Consultant, and (v) such other information (financial or otherwise) reasonably requested by the Agent and the Term Agent.
(g) The Agent and the Term Agent shall have received such documents and instruments reasonably satisfactory to the Agent and Term Agent that the Liens granted pursuant to the Indenture are subordinated to the Liens granted to the Collateral Agent pursuant to the Loan Documents.
(h) There shall not be pending any litigation or other proceeding, the result of which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(i) There shall not have occurred any default of any Material Contract of any Loan Party.
(j) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(k) All fees and reasonable and documented expenses required to be paid to the Agent and the Term Agent on or before the Closing Date shall have been paid in full, and all fees and expenses required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(l) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsel to the Agent and counsel to the Term 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 Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers, the Agent and the Term Agent).
(m) The Agent, the Term Agent and the Lenders shall have received from Lenders all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
(n) All of Borrowers’ accounts payable are within stated invoice terms as of the Closing Date, or as permitted in the ordinary course of Borrowers’ business consistent with past practices, and all taxes (other than taxes not yet due) shall have been paid.
(o) The Closing Date shall have occurred on or before April 22, 2015. The Agent shall notify the Lead Borrower and the Lenders executing of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this AgreementSection 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 Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty or the Lenders, as applicable, 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 this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could qualify in such jurisdiction would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable an opinion of each of Xxxxxx (i) Akin Gump Xxxxxxx Xxxxx & Xxxxxx Xxxx LLP, counsel to the Loan Parties, and Cravath(ii) Xxxxxx | Xxxxxxxx | Xxxxxx, Swaine & Xxxxx LLPa professional law corporation, special counsel to the Loan PartiesWet Seal GC, LLC, in each case, case addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 3.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, the date of the Audited Financial Statements that has had or could would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(xix) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(x) (A) at least one appraisal (based on net liquidation value) by a third party appraiser acceptable to the Collateral Agent of all Inventory of the Borrowers, the results of which are reasonably satisfactory to the Agents, and (B) a written report regarding the results of at least one commercial finance examination of the Loan Parties, which shall be satisfactory to the Agents;
(xi) results of searches or other evidence reasonably satisfactory to the Agents (in each case dated as of a date reasonably satisfactory to the Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases, and releases or subordination agreements reasonably satisfactory to the Agents are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(xii) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers Agents to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent and the Arrangers.Agents;
(b) Not After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $100,000,000 20,000,000.
(c) The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on January 1, 2011, and executed by a Responsible Officer of the Lead Borrower.
(d) The Administrative Agent shall be reasonably satisfied that any financial statements delivered to it and the Lenders fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the most recent financial information delivered to the Administrative Agent.
(e) Except as specifically disclosed in Aggregate Commitments Schedule 5.06, there shall not be pending (or, to the knowledge of Borrower, threatened), in writing, any action, suit, investigation or proceeding in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect.
(f) There shall not have occurred any default of any Material Contract of any Loan Party which would reasonably be expected to have a Material Adverse Effect.
(g) The consummation of the transactions contemplated hereby shall not violate any Law or any Organization Document.
(h) All fees required to be paid to the Agents or the Arranger on or before the Closing Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(i) The Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such reasonable 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 for all reasonable fees, charges and disbursements between the Borrowers and the Administrative Agent).
(j) The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
(k) No event shall have occurred after January 30, 2010 that would reasonably be expected to have a Material Adverse Effect. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Wet Seal Inc)
Conditions of Initial Credit Extension. The obligation effectiveness of the LC Issuer and each Lender to make its initial Credit Extension hereunder this Agreement is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies other electronic image scan transmission (e.g., “pdf” or “tif ” via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date) and each in form and substance satisfactory to the Administrative Agent:):
(i) executed counterparts of this Agreement sufficient in number for distribution to each properly executed by a Responsible Officer of the Administrative Agent, each Lender signing Loan Party and the Lead BorrowerExtending Lenders in such number as the Agent may request;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a partyparty and each in form and substance reasonably satisfactory to the Agent;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing standing, and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of (i) Shearman & Sterling LLP, (ii) Xxxxxxxx, Xxxxxx & Xxxxxx LLPFinger, P.A. and (iii) general counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (includingrequest, without limitation, with respect in form and substance reasonably satisfactory to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) Sections 4.01 and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either to the Solvency of the Loan Parties as of the Effective Date after giving effect to the transactions contemplated hereby, and (D) to the knowledge of such Responsible Officer, that (1) no all consents, licenses or approvals are required in connection with the execution, delivery and performance by such the Loan Party and the validity against such Loan Party Parties of the Loan Documents to which it is a they are party, or (2) that all such consentsif any, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence reasonably satisfactory to the Agent that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security DocumentsDocuments and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(xix) all other Loan DocumentsDocuments (to the extent to be executed on the Effective Date), each duly executed by the applicable Loan Parties; and;
(A) an appraisal (based on net liquidation value) by a third party appraiser acceptable to the Agent of all Inventory of the Loan Parties, the results of which are reasonably satisfactory to the Agent, and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Agent;
(xi) results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Liens permitted by Section 7.01 and Liens for which termination statements satisfactory to the Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Agent for the delivery of such termination statements have been made;
(xii) evidence that the Loan Parties have established DDAs in the name of the Loan Parties into which amounts owed by Third Party Dealers and Third Party Franchisees will be deposited;
(xiii) (A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or statements reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Agent, (B) the Credit Card Notifications and Blocked Account Agreements to the extent required pursuant to Section 6.12 hereof shall have been obtained, and (C) control agreements with respect to the Loan Parties’ securities and investment accounts have been obtained to the extent required under the Security Documents;
(xiv) the Agent shall have received a duly executed agreement from each applicable Subsidiary of SHC (other than Sears Canada Inc. and its Subsidiaries) which owns any Real Estate constituting a warehouse or distribution center that houses ABL Collateral or owns Related Intellectual Property, pursuant to which each such Subsidiary grants to the Agent a rent-free or royalty-free (as applicable) license to use such Real Estate and Related Intellectual Property in connection with the ArrangersAgent’s enforcement of its rights and remedies under the Loan Documents with respect to the ABL Collateral, during the occurrence and continuation of an Event of Default; and
(xv) the Agent shall have received such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.
(b) Not After giving effect to transactions contemplated hereby and any Credit Extensions to be made on the Effective Date hereunder, Availability shall be not less than $100,000,000 100,000,000.
(c) The Agent shall have received a Borrowing Base Certificate dated the Effective Date, relating to the month ended on September 30, 2016, and executed by a Responsible Officer of the Lead Borrower.
(d) The Agent shall be reasonably satisfied that any financial statements delivered to it and the Lenders fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the Audited Financial Statements.
(e) There shall not be pending any litigation or other proceeding, the result of which, either individually or in Aggregate Commitments the aggregate, could reasonably be expected to have a Material Adverse Effect.
(f) There shall not have occurred any default of any Material Contract of any Loan Party.
(g) The consummation of the transactions contemplated hereby shall not violate any Law or any Organization Document of any Loan Party.
(h) All fees required to be paid to the Agent or the Arranger on or before the Effective Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Effective Date shall have been paid in full.
(i) The Borrowers shall have paid all fees, charges and disbursements of counsel to the Agent to the extent invoiced at least one Business Day prior to or on the Effective 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 Effective Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Agent).
(j) To the extent requested in writing at least three (3) Business Days prior to the Effective Date, the Agent and the Lenders shall have received from all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
(k) The Required Lenders other than under the Lead Lenders executing Existing Credit Agreement shall have consented to this Agreement, after giving effect to reductions and/or reallocations of commitments under the Existing Credit Agreement. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in 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 Agent shall have received notice from such Lender prior to the proposed Effective Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Sears Hometown & Outlet Stores, Inc.)
Conditions of Initial Credit Extension. The obligation of the LC each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies other electronic image scan transmission (e.g., “pdf” or “tif “ via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty or the Lenders, as applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower; provided that the form of this Agreement shall have been approved by the Agent’s credit authorities;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note, if requested pursuant to Section 2.11(a);
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each such Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a party;
(iv) copies of the Organization Documents of each Loan Party’s Organization Documents Party and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion opinions of each of Xxxxxx & Xxxxxx Xxxx Xxxxxxx LLP, counsel to the Loan Parties, Parties and Cravath, Swaine & Xxxxx LLP, such local counsel to as the Loan Parties, in each caseAgent may reasonably request, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (bSections 4.02(a) and (c4.02(b) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to the Solvency of the Loan Parties as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses or approvals by any Governmental Authority are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there effect or would not have and reasonably could not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall be expected to have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Datea Material Adverse Effect;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effecteffect and Agent has been named loss payee and additional insured on all applicable insurance policies;
(viii) a certificate payoff letter from the chief financial officer of agent for the Lead Borrower, lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Administrative Agent, attesting to Agent evidencing that the Solvency of the Loan Parties on a consolidated basis as of Existing Credit Agreement has been or concurrently with the Closing Date after giving effect to is being terminated, all obligations thereunder are being paid in full other than contingent indemnification obligations, and all Liens securing obligations under the transactions contemplated herebyExisting Credit Agreement have been or concurrently with the Closing Date are being released;
(ix) the Security DocumentsDocuments and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties, each of which shall have been approved by the Agent’s credit authorities;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and, each of which shall have been approved by the Agent’s credit authorities;
(xi) (A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Agent of all Inventory and Intellectual Property of the Loan Parties, the results of which are reasonably satisfactory to the Agent, provided that the appraisals of Hilco Appraisal Services LLC and Consensus Advisors LLC shall be deemed satisfactory and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory to the Agent;
(xii) results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, and releases or subordination agreements reasonably satisfactory to the Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Agent, (B) the DDA Notifications and Blocked Account Agreements required pursuant to Section 6.13 hereof, (C) control agreements with respect to the Loan Parties’ securities and investment accounts, and (D) Collateral Access Agreements as required by the Agent; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Agent and the Arrangersreasonably may reasonably require.
(b) Not less than $100,000,000 The Agent shall have received the Audited Financial Statements, together with unaudited financial statements for the three and nine month periods ended September 30, 2012, each in Aggregate Commitments accordance with GAAP, consistently applied; Borrowers shall also use best efforts to provide unaudited financial statements for the month of October, 2012 and for the ten months ended October 31, 2012, in accordance with GAAP, consistently applied;
(c) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the week ended December 7, 2012, and executed by a Responsible Officer of the Lead Borrower.
(d) The Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the Audited Financial Statements.
(e) The Agent shall have received and be satisfied with the Borrowers’ Business Plan, capital expenditure plan and such other information (financial or otherwise) reasonably requested by the Agent.
(f) The Agent shall have received evidence that the Borrowers have entered into agreements with Bank of America, N.A. with respect to the Existing Letters of Credit (which agreements shall be reasonably satisfactory to the Agent) and that the Borrowers have made arrangements satisfactory to the Agent to cash collateralize the outstanding amount of all obligations with respect to the Existing Letters of Credit on the Closing Date.
(g) There shall not be pending any litigation or other proceeding, the result of which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or any material negative development in respect to the Borrowers’ on-going litigation related to the Duty Events or the LaJobi Acquisition.
(h) There shall not have occurred any default of any Material Contract of any Loan Party.
(i) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(j) All fees and expenses required to be paid to the Agent on or before the Closing Date shall have been paid in full, and all fees and expenses required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(k) The Borrowers shall have paid all fees, charges and disbursements of counsel to the 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 Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Agent).
(l) The Agent and the Lenders shall have completed satisfactory background checks of the Loan Parties’ shareholders and management and shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
(m) No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(n) There shall not have occurred any disruption or material adverse change in the United States financial or capital markets in general that has had, in the reasonable opinion of the Agent, a material adverse effect on the market for loan syndications or adversely affecting the syndication of the Loans. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in 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 Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Kid Brands, Inc)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranties, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Company which Guaranties shall be from the Borrower, each Designated Borrower, and each Subsidiary organized under the laws of a jurisdiction in the United States or the District of Columbia;
(ii) a Note Notes executed by the Borrowers in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Company and each Loan Party Subsidiary Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx LLP, the counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit J and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) evidence a certificate signed by a Responsible Officer of the Company certifying (A) that all insurance required the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to be maintained pursuant have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Financial Covenant as of the last day of the fiscal quarter of the Company most recently ended prior to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;Closing Date; and
(viii) a certificate from the chief financial officer of the Lead Borrowersuch other assurances, satisfactory in form and substance to certificates, documents, consents or opinions as the Administrative Agent, attesting to the Solvency of L/C Issuer, the Loan Parties on a consolidated basis as of Swing Line Lender or the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Company shall have paid all reasonable fees, charges and disbursements of counsel to 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 Company and the Administrative Agent).
(d) The Closing Date shall have occurred on or before May 20, 2005. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Bairnco Corp /De/)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or PDFs or telecopies (in each case, 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement sufficient in number for distribution to Agreement, the Administrative Agent, each Lender Guaranty and the Lead BorrowerSecurity and Pledge Agreement executed by each Person a party thereto;
(ii) a Note executed by the Borrowers each Borrower in favor of each Lender requesting a NoteNote with respect to the applicable Facility;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party Borrower and each Guarantor as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party Borrower or Guarantor is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party Borrower and each Guarantor is duly organized or formed, and that each Loan Party Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion customary opinions of Drinker Bxxxxx & Rxxxx LLP and, in respect of the Dutch Borrower, Bxxxx & MxXxxxxx Amsterdam N.V., in each of Xxxxxx & Xxxxxx LLP, case counsel or special counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, dated as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)Closing Date;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower Company certifying that (A) that the conditions specified in clauses (a), (bSection 4.01(c) and (c4.01(d)(ii) of Section 4.02 have been satisfied and (B) each of the Specified Representations and the Specified Purchase Agreement Representations are true and correct in all material respect (or, with respect to representations and warranties modified by materiality standards, in all respects) on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respect (or, with respect to representations and warranties modified by materiality standards, in all respects) as of such earlier date;
(vii) a solvency certificate substantially in the form of Exhibit G signed by the chief financial officer of the Company;
(viii) the Refinancing shall have been consummated or shall be consummated substantially concurrently with the Closing Date, and the Administrative Agent shall have received customary payoff letters in connection therewith as to the total indebtedness with respect thereto required to be paid (except to the extent outstanding letters of credit are to be continued under the Revolving Credit Facility, cash collateralized or subject to back-to-back letters of credit) (the “Prepayment Amount”) and confirming that when the Prepayment Amount is paid and all commitments thereunder have been terminated and cancelled (which will occur on or prior to the receipt of the Prepayment Amount), all Liens in connection with the Indebtedness subject to the Refinancing shall be terminated and released, in all events in such a manner as the Administrative Agent is reasonably satisfied that on the Closing Date, after giving effect to the Transactions, neither the Company nor any of its Subsidiaries (giving effect to the Closing Date Acquisition) shall have any outstanding Indebtedness other than Indebtedness under the Loan Documents or other Indebtedness not subject to the Refinancing;
(ix) (A) audited consolidated balance sheets of the Company and its consolidated Subsidiaries as at the end of, and related statements of income and cash flows of the Company and its consolidated Subsidiaries for, the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018, (B) audited consolidated balance sheets of the Target and its consolidated Subsidiaries as at the end of, and related statements of income and cash flows of the Target and its consolidated Subsidiaries for, the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018, (C) unaudited consolidated balance sheet of the Company and its consolidated Subsidiaries as at the end of, and related statements of income and cash flows of the Company and its consolidated Subsidiaries for, each subsequent fiscal quarter (other than the fourth fiscal quarter of any fiscal year) of the Company and its consolidated Subsidiaries ended after December 31, 2018 and ended at least 45 days before the Closing Date and (D) unaudited consolidated balance sheet of the Target and its consolidated Subsidiaries as at the end of, and related statements of income and cash flows of the Target and its consolidated subsidiaries for, each subsequent fiscal quarter (other than the fourth fiscal quarter of any fiscal year) of the Target and its consolidated Subsidiaries ended after December 31, 2018 and ended at least 45 days before the Closing Date;
(x) a pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Company and its Subsidiaries as of, and for the three-month period ending on, the last day of the most recently completed fiscal quarter ended at least 45 days prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income);
(xi) consolidated forecasts for the Company and its Subsidiaries (after giving effect to the consummation Transactions) of balance sheets, income statements and cash flow statements on an annual basis for each year during the transactions contemplated under term of this Agreement and on a quarterly basis for the first year after the Closing Date; and
(A) a Request for Credit Extension in accordance with the requirements hereof (including the notice periods set forth in Section 2.02(a) with respect to each Type of Loan being requested on the Closing Date, and with a copy to the L/C Issuer or the applicable Swing Line Lender, if applicable), and (B) a Funding Indemnity Letter with respect to the Euro Term Facility and, as applicable, any other Eurocurrency Rate Loans to be made on the Closing Date.
(b) The Collateral and Guarantee Requirement (other than in accordance with Section 6.19 and Schedule 6.19) shall have been satisfied and (after giving effect to any Liens to be released prior to or contemporaneously with the initial Credit Extension on the Closing Date) the Collateral shall be subject to no Liens other than Permitted Liens; provided that if, notwithstanding the use by the Company and its Restricted Subsidiaries of commercially reasonable efforts to provide and perfect on the Closing Date security interest in assets intended to constitute Collateral such provision and/or perfection of a security interest (other than (i) the execution and delivery by each Loan Documents Party of the documentation required by Section 4.01(a), (ii) the delivery of any certificated Equity Interests of each pledged Subsidiary (with powers executed in blank) pledged or to be pledged pursuant to any Collateral Document, (iii) the delivery of UCC financing statements with respect to each Domestic Obligor (or an authorization permitting the Administrative Agent to file UCC financing statements with respect to each Domestic Obligor), and (iv) the delivery of short-form Intellectual Property Security Agreements with respect to each Domestic Obligor for filing with the United States Patent and Trademark Office or the United States Copyright Office, as applicable (or an authorization permitting the Administrative Agent to file such short-form security agreements with respect to each grantor)) is not accomplished as of the Closing Date, such provision and/or perfection of a security interest in such Collateral shall not be a condition to the availability of the initial Credit Extension on the Closing Date (including but shall be required to be satisfied as promptly as practicable after the Closing Date and in any Loans made event within the period specified therefor in Schedule 6.19 or Letters such later date as the Administrative Agent may reasonably agree).
(c) Since December 31, 2016, there shall not have occurred any event, change, circumstance, occurrence, effect or state of Credit issued hereunder))facts that, (B) that there individually or in the aggregate, has been no event or circumstance since May 2had, 2015, that has had or could reasonably be reasonably expected to have, a Closing Date Material Adverse Effect.
(d) (i) the Administrative Agent shall have received a final, executed copy of the Purchase Agreement and any amendment, modification or waiver thereof since the execution thereof on April 4, 2017, and (ii) the Closing Date Acquisition shall be consummated (including the consummation of the applicable regulatory requirements and receipt of the applicable third party consents, in each case, as required by the Purchase Agreement) simultaneously or substantially concurrently with the closing under the Facilities in accordance with the terms of the Purchase Agreement, after giving effect to any modifications, amendments, consents or waivers, other than those modifications, amendments, consents or waivers that are materially adverse to the interests of the Lenders (in their capacities as such), the Administrative Agent and the Arrangers, either individually or in the aggregate, a Material Adverse Effectwithout the prior written consent of the Arrangers (such consent not to be unreasonably withheld, delayed or conditioned).
(Ce) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party The Administrative Agent and the validity against such Loan Party of Lenders shall have received (i) at least one Business Day before the Closing Date all documentation and other information about the Loan Documents to which it is a party, or (2) Parties and their Subsidiaries that all such consents, licenses and approvals shall have been obtained reasonably requested by the Administrative Agent or the Lenders in writing at least five (5) business days prior to the Closing Date and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, Administrative Agent and the senior credit facilities of Lenders reasonably determine is required by applicable regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the B&N Parties have closed on or substantially simultaneously with PATRIOT Act (provided that such information shall, to the extent requested at least ten (10) Business Days prior to the Closing Date;, have been provided at least five (5) Business Days prior to the Closing Date) and (ii) a certification regarding beneficial ownership required by the Beneficial Ownership Regulation in relation to each applicable Borrower, at least five (5) days prior to the Closing Date, if any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation as to such Lender.
(viif) evidence that The Administrative Agent shall have received a customary flow of funds statement executed by the Company with respect to all insurance required Credit Extensions and other Transactions to be maintained pursuant to occur on the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory Closing Date in form and substance satisfactory to the Administrative Agent.
(g) All fees required to be paid pursuant to this Agreement or the Fee Letters shall have been paid.
(h) Unless waived by the Administrative Agent, attesting all reasonable out-of-pocket expenses required to the Solvency of the Loan Parties be paid on a consolidated basis as of or before the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, paid (to the reasonable satisfaction extent invoiced at least one (1) business day (or such shorter time as the Company may agree) prior to the Closing Date (provided that any such invoice shall not thereafter preclude a final settling of accounts between the Collateral Agent Company and the ArrangersAdministrative Agent).
(bi) Not less than $100,000,000 in Aggregate Commitments The Closing Date shall have been occurred on or prior to August 30, 2019. WITHOUT LIMITING THE FOREGOING, ON THE CLOSING DATE USAGE OF THE REVOLVING CREDIT FACILITY SHALL BE LIMITED TO $300,000,000 TO FINANCE IN PART THE TRANSACTIONS AND TO ISSUE LETTERS OF CREDIT (OR PERMIT EXISTING LETTERS OF CREDIT TO BE ROLLED INTO THE REVOLVING CREDIT FACILITY). 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 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(iiA) a Committed Loan Note executed by the Borrowers in favor of each Lender requesting a Committed Loan Note, and (B) a Swing Line Loan Note executed by the Borrowers in favor of Xxxxx Fargo Retail Finance, LLC;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, existing and in good standing under the Laws of the jurisdiction of its incorporation or organization, and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx Xxxxxxxxx Xxxxxxxxxx & Xxxxxx Xxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) Sections 4.01 and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, and (D) there have not been any material change in to the capital structure and capitalization Solvency of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies Loan Parties on a Consolidated basis as of the Spin-Off Agreements are attached thereto and (F) that Closing Date after giving effect to the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Datetransactions contemplated hereby;
(vii) a duly completed Compliance Certificate as of the last day of the Fiscal Month of the Parent and its Subsidiaries most recently ended prior to the Closing Date, signed by a Responsible Officer of the Lead Borrower;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the certain Security DocumentsDocuments and certificates evidencing any stock being pledge thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xi) (A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Collateral Agent of all Inventory of the Borrowers, the results of which are satisfactory to the Collateral Agent and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory to the Collateral Agent;
(xii) results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each case dated as of a date reasonably satisfactory to the Collateral Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, and releases or subordination agreements satisfactory to the Collateral Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Collateral Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent Agent, (B) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, and (C) control agreements with respect to the ArrangersLoan Parties’ securities and investment accounts;
(xiv) Collateral Access Agreement, as required by the Collateral Agent;
(xv) Freight forwarder agreements, as required by, and in form and substance satisfactory to, the Collateral Agent; and
(xvi) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) Not less than $100,000,000 The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date for the then most recently ended fiscal week, and executed by a Responsible Officer of the Lead Borrower.
(c) The Administrative Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the most recent financial information delivered to the Administrative Agent.
(d) The Administrative Agent shall have received and be satisfied with (i) a detailed Business Plan and forecast for the period commencing on the Closing Date and ending with the end of such Fiscal Year, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in Aggregate Commitments conformity with GAAP and consistent with the Loan Parties’ then current practices and (b) such other information (financial or otherwise) reasonably requested by the Administrative Agent.
(e) There shall not be pending any litigation or other proceeding, the result of which, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(f) There shall not have occurred any default of any Material Contract or adverse change in the business, assets, operations, trade support, condition (financial or otherwise) or prospects of any Loan Party, which would reasonably be expected to have a Material Adverse Effect.
(g) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(h) All fees and expenses required to be paid to the Agents pursuant to Sections 2.03, 2.09 and 10.04 and on or before the Closing Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(i) The Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent, 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 Borrowers and the Administrative Agent).
(j) No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(k) There shall not have occurred any disruption or material adverse change in the United States financial or capital markets in general that has had, in the reasonable opinion of the Administrative Agent, a material adverse effect on the market for loan syndications or adversely affecting the syndication of the Loans.
(l) Each Lender shall have received final credit approval to enter into the Agreement and the other Loan Documents (to which it is a party) and for its applicable Commitment, and to perform its obligations thereunder.
(m) The Agents shall have completed, and be satisfied with, its corporate and legal due-diligence of each Loan Party (including, but not limited to solvency), its examination of the Collateral, the Stores and distribution centers of the Loan Parties, and the capital structure of the Loan Parties. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Iparty Corp)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(ai) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 Agent and each of the Administrative AgentLenders:
(i1) executed counterparts of this Agreement Agreement, all Collateral Documents and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii2) a Note the Notes executed by the Borrowers Borrower in favor of each Lender requesting a NoteNotes;
(iii3) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv4) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v5) a favorable opinion of each of Xxxxxx Xxxxxxxxxxx & Xxxxxx Xxxxxxxx Xxxxxxx Xxxxx Xxxxx, LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel acceptable to the Loan Parties, in each caseAgent, addressed to the Administrative Agent and each Lender and Lender, as to such the matters set forth concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect in form and substance satisfactory to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi6) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) stating that no such consents, licenses or approvals are so required;
(7) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections (b)(a) and (b) have been satisfied, and (B) that there have not has been any material change no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the capital structure aggregate, a Material Adverse Effect; and capitalization (C) a calculation of the Lead Consolidated Leverage Ratio based on the unaudited consolidated and consolidating financial statements of the Borrower and its Subsidiaries from the Initial Cap Tablefor its fiscal quarter ended April 30, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date2008;
(vii) 8) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viii9) an ALTA extended coverage lender’s title insurance policy or unconditional commitment therefor issued by a certificate from title insurance company acceptable to the chief financial officer of Agent, for the Lead real property covered by the Indiana Mortgage in an amount equal to $1,750,000, insuring that fee simple title to such real property is vested in Borrower, satisfactory in form and substance to assuring the Administrative Agent, attesting to Agent that the Solvency of Indiana Mortgage creates a valid and enforceable lien on the Loan Parties on a consolidated basis real property covered thereby as of security for the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed obligations secured by the applicable Loan Parties;
(x) all Indiana Mortgage prior and superior in right to any other Loan Documentsperson, each duly executed subject only to exceptions approved by the applicable Loan PartiesAgent in writing; and
(xi10) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, documents, consents or opinions as Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(ii) Any fees required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered paid on or recorded to create or perfect before the first priority Liens intended to be created under the Loan Documents and all such documents and instruments Closing Date shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangerspaid.
(biii) Not less than $100,000,000 in Aggregate Commitments Unless waived by Agent, Borrower shall have been paid all fees, charges and disbursements of counsel to Agent (directly to such counsel if requested by 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 Borrower and Agent).
(iv) A favorable standard flood hazard determination for the real property covered by the Indiana Mortgage issued by LSI Flood Services. 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 this Section (a), 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 Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerGuaranty;
(ii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers a secretary or assistant secretary or similar officer of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease of incorporation or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectformation;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx LLPFulbright and Xxxxxxxx, L.L.P., counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens set forth in favor of the Collateral Agent)Exhibit F;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party the Borrower and the validity against such Loan Party the Borrower of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) evidence a certificate signed by a Responsible Officer of the Borrower certifying (A) that all insurance required to be maintained pursuant to the representations and warranties of the Loan Parties set forth in the Loan Documents are true and correct in all endorsements in favor material respects (except to the extent that such representation and warranty is qualified by materiality or is limited to a specific date), and (B) no Default or Event of Default has occurred and is continuing or would result from the Collateral Agent required under initial Borrowing contemplated hereunder or the Loan Documents have been obtained and are in effectapplication of proceeds therefrom;
(viii) a certificate from signed by the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency Borrower certifying that each of the Loan Parties on a consolidated basis as of the Closing Date Parties, in each case after giving effect to the initial Borrowing contemplated hereunder, the Acquisition and the other transactions contemplated hereby, is or are Solvent;
(ix) the Security Documents, each duly executed a certificate signed by the applicable Loan Partieschief financial officer of the Borrower certifying that immediately after giving pro forma effect to the initial Borrowings and the Acquisition, the Borrower shall be in compliance with Section 7.10;
(x) all other Loan Documentsa certificate signed by a Responsible Officer of the Borrower certifying that, each duly executed to the Borrower’s knowledge as certified to it by the applicable Loan PartiesSellers, no “Material Adverse Effect” (as such term is defined in the Acquisition Agreement) has occurred and is continuing since March 31, 2010; and
(xi) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 There shall not have occurred (i) any bankruptcy of any Loan Party, or (ii) any material pending or threatened litigation or other proceeding by or against a Loan Party that has a reasonable likelihood of being adversely determined, and if adversely determined, would reasonably be expected to materially and adversely affect the ability of the Loan Parties as a whole to repay when due the Loans contemplated herein.
(c) The Administrative Agent shall have received (i) copies of all Acquisition Documents, together with all amendments, supplements, waivers or other modifications thereto, in Aggregate Commitments each case certified by a Responsible Officer of the Borrower as true, correct and complete and (ii) evidence of all consents and approvals required pursuant to the terms of the Acquisition Documents, including the consent or approval of the board of directors or other governing body of the Sellers. The Acquisition will have been consummated in accordance in all material respects with the terms and conditions of the Acquisition Documents without any waiver, modification or consent thereunder that is materially adverse to the Lenders unless approved by the Lenders.
(d) Any fees required to be paid on or before the Closing Date shall have been paid.
(e) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to 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).
(f) The Administrative Agent shall have received a Request for Credit Extension in accordance with the requirements hereof.
(g) No statute, rule, regulation or other legal requirement shall have been promulgated or enacted and be in effect that on a permanent basis restrains, enjoins, or prohibits the Lenders from Lenders making such Credit Extension.
(h) The Administrative Agent and each Lender shall have received all documentation and other than information that the Lead Lenders executing this AgreementAdministrative Agent and each such Lender shall have reasonably requested in order to comply with its respective obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
Appears in 1 contract
Samples: 364 Day Credit Agreement (Patterson Uti Energy Inc)
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The the Administrative Agent shall have received evidence, in form and substance reasonably satisfactory to Administrative Agent, that Administrative Agent has (or will have concurrently with the effectiveness of the Agreement) a valid perfected first priority security interest in the ABL Priority Collateral;
(b) the Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies other electronic image scan transmission (e.g., “pdf” or “tif “ via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty or the Lenders, as applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could qualify in such jurisdiction would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable written opinion of each of Xxxxxx & Xxxxxx Xxxxxxx LLP, counsel to for the Loan Parties, and Cravath, Swaine & Xxxxx LLP, such other counsel to for the Loan PartiesParties as may be reasonably requested by Administrative Agent, in each case(A) dated the Closing Date, (B) addressed to the Administrative Agent and each Lender the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Section 4.01(e) and Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied satisfied;
(after giving effect to vii) a certificate signed by a Responsible Officer of Lead Borrower certifying that the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party obligations of the Loan Documents Parties hereunder and the Term Loan Facility do not give rise to which it is any obligation of the Lead Borrower or its Subsidiaries to grant any Liens in respect of any existing indebtedness of the Lead Borrower or its Subsidiaries or violate any of the terms of the agreements with respect thereto, together with such supporting detail as Administrative Agent may request, including with respect to the calculation of Consolidated tangible net assets or any other amounts that are the basis for such certification;
(viii) a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in duly completed Compliance Certificate as of the capital structure and capitalization last day of the most recent Fiscal Quarter of the Lead Borrower and its Subsidiaries from the Initial Cap Table, ended at least forty-five (E45) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with days prior to the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) , signed by a certificate from the chief financial officer Responsible Officer of the Lead Borrower;
(ix) certificates of insurance for the insurance policies required by Section 6.07 and the applicable provisions of the other Loan Documents (including customary lender’s loss payable endorsements and naming the Administrative Agent as an additional insured, in each case in form and substance reasonably satisfactory to the Administrative Agent);
(x) a payoff letter from the Existing Term Loan Agent reasonably satisfactory in form and substance to the Administrative Agent, attesting to Agent evidencing that the Solvency of the Existing Term Loan Parties on a consolidated basis as of Agreement has been or concurrently with the Closing Date after giving effect to is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the transactions contemplated herebyExisting Term Loan Agreement have been or concurrently with the Closing Date are being released;
(ixxi) the Security DocumentsDocuments (other than the Mortgages and the Related Real Estate Collateral Security Agreements), each duly executed by the applicable Loan Parties;
(xxii) all other Loan DocumentsDocuments (other than the Mortgages and the Related Real Estate Collateral Security Agreements), each duly executed by the applicable Loan Parties;
(xiii) results of Lien searches with respect to each Loan Party (in each case dated as of a date reasonably satisfactory to the Administrative Agent) indicating the absence of Liens on the Collateral, except for Permitted Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any Mortgages, and releases or subordination agreements reasonably satisfactory to the Administrative Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Administrative Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xiA) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Administrative Agent and the Arrangers to be filed, registered or recorded to create create, perfect or perfect continue the perfection of the first priority Liens intended to be created under in the Loan Documents ABL Priority Collateral and all such documents and instruments shall have been so will be filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Administrative Agent, (B) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, and (C) other than for Store locations, Collateral Access Agreements for locations where there is ABL Priority Collateral or other assets Administrative Agent may require access and use of to realize on ABL Priority Collateral as such Collateral Access Agreements may be required by the Arrangers.Administrative Agent;
(bc) Not after giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby, (iii) provision for payment of all other fees and expenses of the Transactions, and (iv) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Excess Availability shall be not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.400,000,000;
Appears in 1 contract
Samples: Credit Agreement (Supervalu Inc)
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The the Administrative Agent shall have received evidence, in form and substance reasonably satisfactory to Administrative Agent, that Administrative Agent has (or will have concurrently with the effectiveness of the Agreement) a valid perfected first priority security interest in the ABL Priority Collateral;
(b) the Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies other electronic image scan transmission (e.g., “pdf” or “tif “ via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty or the Lenders, as applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could qualify in such jurisdiction would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Supervalu Inc)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 AgentAgent and each of the Lenders:
(i) fully executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerBorrower and, if Advance Funding Arrangements shall exist with respect to funding on the Closing Date, executed Advance Funding Documentation in form and number acceptable to the Administrative Agent;
(ii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Loan Party Parties is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to Borrower (on behalf of each of the Loan Parties, in each case), addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all applicable consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) a certificate signed by a Responsible Officer of the Parent certifying (A) that each Consolidated Party is in compliance in all material respects with all existing contractual financial obligations, (B) all governmental, shareholder and third party consents and approvals necessary for the Loan Parties to enter into the Loan Documents and fully perform thereunder, if any, have been obtained, (C) immediately after giving effect to this Agreement, the other Loan Documents and all the transactions contemplated therein to occur on such date, (1) each of the Loan Parties is solvent, (2) no Default or Event of Default exists, (3) all representations and warranties contained herein and in the other Loan Documents are true and correct in all material respects, and (4) the Loan Parties are in compliance with each of the financial covenants set forth in Section 7.11 (and including detailed calculations of each such financial covenant); (D) that the conditions specified in Sections 4.02(a) and (b) have been satisfied; (E) that, to such Responsible Officer's knowledge, there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; (F) the current Debt Ratings and (G) that the Replaced Credit Facility has been or concurrently with the Closing Date is being fully amended and restated by this Agreement and all Liens (if any) securing obligations under the Replaced Credit Facility have been or concurrently with the Closing Date shall, as of the Closing Date, secure the Obligations hereunder and under the other Loan Documents;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viiiix) a certificate from the chief financial officer of the Lead Borrowersuch other assurances, satisfactory in form and substance to certificates, documents, or consents as the Administrative Agent, attesting to the Solvency of L/C Issuer, the Loan Parties on a consolidated basis as of Swing Line Lender or the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 There shall not have occurred a material adverse change since December 31, 2014 in Aggregate Commitments the business, assets, operations, or condition (financial or otherwise) of the Borrower and the other Consolidated Parties taken as a whole, as reasonably determined by the Administrative Agent.
(c) There shall not exist any action, suit, investigation, or proceeding pending or threatened, in any court or before any arbitrator or governmental authority that could have a Material Adverse Effect, as reasonably determined by the Administrative Agent.
(d) Any fees required to be paid on or before the Closing Date shall have been paid.
(e) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, 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). Without limiting the generality of the provisions of the last paragraph of Section 9.03, (i) for purposes of determining compliance with the conditions specified in 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing proposed Closing Date specifying its objection thereto, and (ii) in the event that Advance Funding Arrangements shall exist, the delivery by any Lender (x) of funds pursuant to such Advance Funding Arrangements and (y) its signature page to this Agreement shall constitute the request, consent and direction by such Lender to the Administrative Agent (unless expressly revoked by written notice from such Lender received by the Administrative Agent prior to the earlier to occur of funding or the Administrative Agent’s declaration that this Agreement is effective) to withdraw and release to the Borrower on the Closing Date the applicable funds of such Lender to be applied to the funding of Loans by such Lender in accordance with Section 2.02 upon the Administrative Agent’s determination (made in accordance with and subject to the terms of this Agreement) that it has received all items expressly required to be delivered to it under this Section 4.01.
Appears in 1 contract
Samples: Credit Agreement (Tanger Properties LTD Partnership /Nc/)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies .pdf copies (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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerAgreement;
(ii) a Note Notes executed by the Borrowers in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party of the Borrowers is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) such financial information relating to the Borrowers and their Subsidiaries as the Administrative Agent may request;
(vi) a favorable opinion of each of Xxxxxx & Xxxxxx Fox Rothschild LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each caseToro Luxembourg, addressed to the Administrative Agent and each Lender and Lender, substantially in the form attached at Exhibit F or as otherwise reasonably satisfactory to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effectso required;
(viii) a certificate from signed by a Responsible Officer of Toro certifying (A) that the chief financial officer conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Lead BorrowerAudited Financial Statements that has resulted or could reasonably be expected to result in, satisfactory either individually or in form the aggregate, a Material Adverse Effect; (C) there does not exist any pending or threatened action, suit, investigation or proceeding in any court or before any arbitrator or Governmental Authority that (x) would, if determined adversely to Toro or any Subsidiary, materially and substance adversely affect Toro or Toro and its Subsidiaries, taken as a whole, or (y) purports to affect any transaction contemplated under this Agreement or any Loan Document or the Administrative Agent, attesting ability of any Borrower to perform its respective obligations under this Agreement or any Loan Document; and (D) the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated herebycurrent Debt Ratings;
(ix) a duly completed Compliance Certificate as of the Security Documentslast day of the fiscal quarter of Toro most recently ended prior to the Closing Date, each duly executed signed by the applicable Loan Partiesa Responsible Officer of Toro;
(x) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all other Loan Documents, each duly executed by indebtedness thereunder has been paid and satisfied in full and all Liens if any securing obligations under the applicable Loan Parties; andExisting Credit Agreement have been or concurrently with the Closing Date are being released;
(xi) all documents (A) upon the reasonable request of any Lender made at least seven days prior to the Closing Date, the Borrowers shall have provided to such Lender the documentation and instrumentsother information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recordedAct, in each case, case at least two days prior to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.Closing Date; and
Appears in 1 contract
Samples: Credit Agreement (Toro Co)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies (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 Agent and each of the Administrative AgentLenders:
(i) executed counterparts of this Agreement Agreement, all Collateral Documents and each Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of Guaranty duly executed by each Guarantor;
(A) a Security Agreement, duly executed by Borrower and each of Xxxxxx & Xxxxxx LLPthe Guarantors, counsel together with any other supplemental agreement to be executed and delivered by the terms of the Security Agreement, (B) certificates evidencing all of the outstanding shares of capital stock or other Equity Interests (to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, extent evidenced by certificates) in each caseof the Subsidiaries and stock powers or other instruments of transfer, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitationendorsed in blank, with respect to enforceabilitysuch certificates, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses any other documents or approvals are required in connection with instruments reasonably requested by the execution, delivery and performance by such Loan Party and Agent to create or perfect the validity against such Loan Party of Liens intended to be created under the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing DateSecurity Agreement;
(vii) Certified results of UCC searches of all applicable UCC filing offices reflecting that there are no effective financing statements currently on file in such offices naming Borrower or any Subsidiary as debtor, other than financing statements relating to Liens permitted to exist under the terms of Section 7.01;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viii) , including without limitation a certificate from of Borrower's insurance broker summarizing the chief financial officer of the Lead Borrower, satisfactory in form insurance coverage maintained by Borrower and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents its Subsidiaries and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.showing compliance with Section
Appears in 1 contract
Samples: Credit Agreement (North American Galvanizing & Coatings Inc)
Conditions of Initial Credit Extension. The obligation of the LC each L/C Issuer and each Lender to make its initial Credit Extension hereunder on the Closing Date is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty or the Lenders, as applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerAgreement;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that as to the conditions specified set forth in clauses clause (a), (b) and (ch) of this Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date4.01;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Albertsons Companies, Inc.)
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (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 AgentAgent and its legal counsel:
(i) executed counterparts of this Agreement Agreement, all Collateral Documents and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications certificates as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, formed and that Borrower and each Loan Party is Guarantor is, validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion opinions of each of Xxxxxx & Xxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel Parties acceptable to the Loan Parties, in each caseAgent, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative in form and substance satisfactory to Agent may reasonably request (including, without limitation, including an opinion of Finnish counsel with respect to enforceability, due authorization and perfection the pledge of 65% of the Liens in favor stock of the Collateral Agent)Planar Systems OY;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Lead Borrower and its Subsidiaries from the Initial Cap Table, certifying (E) that executed copies of the Spin-Off Agreements are attached thereto and (FA) that the Spin-Off shall conditions specified in Sections 4.02(a) and (b) have occurredbeen satisfied, and (B) that there has been no event or circumstance since the senior credit facilities date of the B&N Parties Audited Financial that has had or could reasonably be expected to have closed on or substantially simultaneously with a Material Adverse Effect, and (C) a calculation of the financial covenants set forth in Section 6.12 as of the last day of the fiscal quarter of Borrower most recently ended prior to the Closing Date;
(viiviii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;; and
(ix) such other assurances, certificates, documents, consents, evidence of perfection of all Liens securing the Security Documents, each duly executed by Obligations or opinions as Agent or the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been received from Lenders other than paid.
(c) Unless waived by Agent, Borrower shall have paid all Attorney Costs of Agent to the Lead Lenders executing this Agreementextent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs 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 Borrower and Agent).
(d) The Closing Date shall have occurred on or before December 31, 2003.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s 's receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty (as applicable), 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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement and the Loan Documents, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iviii) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party of the Borrower and the Guarantors is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(viv) a favorable opinion opinions of each of Xxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxxxx Xxxx LLP, special counsel to the Loan Parties, and Cravathof Xxxx X. XxXxxxx, Swaine & Xxxxx LLP, general counsel to of the Loan Parties, in each caseBorrower, addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit G and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (includingrequest; provided that to the extent such matters relate to Pennsylvania and Utah law, without limitationsuch favorable opinion instead may be rendered on such matters by Dechert LLP and Prince Yeates & Xxxxxxxxxx, with respect to enforceabilitya professional corporation, due authorization and perfection of the Liens in favor of the Collateral Agent)respectively;
(viv) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied satisfied, (after giving effect to B) that all approvals of shareholders of each of the Borrower and Apogent required for consummation of the transactions contemplated under this Agreement Merger have been obtained and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (BC) that there has been no event or circumstance since May 2, 2015, the date of the Audited Financial Statements that has had or could be reasonably expected to havehad, either individually or in the aggregate, a Material Adverse Effect, ;
(Cvi) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party a duly completed Compliance Certificate as of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization fiscal quarter of the Lead Borrower and its Subsidiaries from the Initial Cap Tableended March 31, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date2004;
(vii) evidence that all insurance required to be maintained pursuant a certificate signed by a Responsible Officer of the Borrower demonstrating in reasonable detail, in each case after giving pro forma effect to the Loan Documents and all endorsements in favor Merger, (A) compliance with each of the Collateral Agent required under the Loan Documents have been obtained covenants in clauses (a) and are in effect(c) of Section 7.10 and (B) a Consolidated Leverage Ratio of less than 4.20 to 1.00;
(viii) a certificate from evidence that the chief financial officer credit facilities extended hereunder shall receive, upon consummation of the Lead BorrowerMerger, a rating of not less than Ba2 from Xxxxx'x and BBB - from S&P;
(ix) certificates (which certificates shall be accompanied by irrevocable undated stock powers, duly endorsed in blank and otherwise satisfactory in form and substance to the Administrative Agent, attesting ) representing all Equity Interests pledged pursuant to the Solvency Pledge Agreement;
(A) the results of a recent search, by a Person reasonably satisfactory to the Administrative Agent, of all effective UCC financing statements and fixture filings and all judgment and tax lien filings which may have been made with respect to any personal or mixed property of any Loan Party, together with copies of all such filings disclosed by such search, and (B) UCC termination statements duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements or fixture filings disclosed in such search (other than any such financing statements or fixture filings in respect of Liens permitted to remain outstanding pursuant to the terms of this Agreement); 77
(xi) UCC financing statements with respect to the Pledged Collateral of such Loan Party, for filing in all jurisdictions as may be necessary or, in the opinion of the Loan Parties Administrative Agent, desirable to perfect the Liens created in such Pledged Collateral pursuant to the Pledge Agreement;
(xii) releases duly executed (if necessary) of security interests by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective filings in any IP Filing Office in respect of any IP Collateral (other than any such filings in respect of Liens permitted to remain outstanding pursuant to the terms of this Agreement);
(xiii) (A) pro forma financial statements consisting of consolidated balance sheets, statements of income and cash flows, giving pro forma effect to the Merger, which shall be in form and substance satisfactory to the Administrative Agent and (B) projected financial statements consisting of consolidated balance sheets, statements of income and cash flows on a consolidated quarterly basis as of the Borrower and its Subsidiaries for the remainder of the fiscal year ending December 31, 2004 and for each fiscal year thereafter through the fiscal year ending December 31, 2011;
(xiv) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date after giving effect to is being terminated and all Liens securing obligations under the transactions contemplated hereby;
(ix) Existing Credit Agreement have been or concurrently with the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan PartiesClosing Date are being released; and
(xixv) all such other certificates or documents and instruments, including Uniform Commercial Code financing statements, required by law as the Administrative Agent or Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 The Borrower shall have obtained all Governmental Authorizations and all consents of other Persons, in Aggregate Commitments each case that are necessary in connection with the transactions contemplated by the Loan Documents, and each such Governmental Authorization and consent shall be in full force and effect, except in a case where the failure to obtain or maintain a Governmental Authorization or consent, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. All applicable waiting periods shall have expired without any action being taken or threatened by any significant governmental or regulatory authority that could restrain, prevent or otherwise impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole.
(c) Any fees required to be paid on or before the Closing Date shall have been received from Lenders other than paid.
(d) Unless waived by the Lead Lenders executing this AgreementAdministrative Agent, the Borrower shall have paid all Attorney Costs of the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of Attorney Costs 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).
(e) The Closing Date shall have occurred on or before September 30, 2004.
Appears in 1 contract
Samples: Credit Agreement (Fisher Scientific International Inc)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerCompany;
(ii) a Note Notes executed by the Borrowers in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party the Company is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of XxXxxxx North Xxxxxx & Xxxxxx LLPXxxxx, PC LLO, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and as to such matters concerning Lender, in the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens form set forth in favor of the Collateral Agent)Exhibit H;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor a certificate signed by a Responsible Officer of the Collateral Agent required under Company certifying (A) that the Loan Documents conditions specified in Sections 4.02(a) and (b) have been obtained satisfied and are (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in effectthe aggregate, a Material Adverse Effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance evidence that prior to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of or concurrently with the Closing Date after giving effect (A) all obligations and Indebtedness under or with respect to the transactions contemplated herebyExisting Five-Year Credit Agreement have been or are being paid in full, (B) all commitments, and any notes issued, in connection with the Existing Five-Year Credit Agreement have been or are being terminated and (C) all Liens securing obligations under the Existing Five-Year Credit Agreement, if any, have been or are being released;
(ix) executed counterparts of (A) a Company Guaranty for each Foreign Obligor that is a Designated Borrower on the Security Documents, each duly executed by the applicable Loan Parties;Closing Date and (B) a Subsidiary Guaranty; and
(x) all such other Loan Documentsassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties; and
(xi) all documents and instrumentsAdministrative Agent, including Uniform Commercial Code financing statementsthe L/C Issuer, required by law the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to 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 Company and the Administrative Agent). 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 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(iiA) a Committed Loan Note executed by the Borrowers in favor of each Lender requesting a Committed Loan Note, and (B) a Swing Line Loan Note executed by the Borrowers in favor of Wxxxx Fargo Retail Finance, LLC;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, existing and in good standing under the Laws of the jurisdiction of its incorporation or organization, and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx Pxxxxxxxx Xxxxxxxxxx & Xxxxxx Lxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) Sections 4.01 and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, and (D) there have not been any material change in to the capital structure and capitalization Solvency of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies Loan Parties on a Consolidated basis as of the Spin-Off Agreements are attached thereto and (F) that Closing Date after giving effect to the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Datetransactions contemplated hereby;
(vii) a duly completed Compliance Certificate as of the last day of the Fiscal Month of the Parent and its Subsidiaries most recently ended prior to the Closing Date, signed by a Responsible Officer of the Lead Borrower;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the certain Security DocumentsDocuments and certificates evidencing any stock being pledge thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xi) (A) appraisals (based on net liquidation value) by a third party appraiser acceptable to the Collateral Agent of all Inventory of the Borrowers, the results of which are satisfactory to the Collateral Agent and (B) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be satisfactory to the Collateral Agent;
(xii) results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each case dated as of a date reasonably satisfactory to the Collateral Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, and releases or subordination agreements satisfactory to the Collateral Agent are being tendered concurrently with such extension of credit or other arrangements satisfactory to the Collateral Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent Agent, (B) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof, and (C) control agreements with respect to the ArrangersLoan Parties’ securities and investment accounts;
(xiv) Collateral Access Agreement, as required by the Collateral Agent;
(xv) Freight forwarder agreements, as required by, and in form and substance satisfactory to, the Collateral Agent; and
(xvi) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) Not less than $100,000,000 The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date for the then most recently ended fiscal week, and executed by a Responsible Officer of the Lead Borrower.
(c) The Administrative Agent shall be reasonably satisfied that any financial statements delivered to it fairly present the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the most recent financial information delivered to the Administrative Agent.
(d) The Administrative Agent shall have received and be satisfied with (i) a detailed Business Plan and forecast for the period commencing on the Closing Date and ending with the end of such Fiscal Year, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in Aggregate Commitments conformity with GAAP and consistent with the Loan Parties’ then current practices and (b) such other information (financial or otherwise) reasonably requested by the Administrative Agent.
(e) There shall not be pending any litigation or other proceeding, the result of which, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(f) There shall not have occurred any default of any Material Contract or adverse change in the business, assets, operations, trade support, condition (financial or otherwise) or prospects of any Loan Party, which would reasonably be expected to have a Material Adverse Effect.
(g) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(h) All fees and expenses required to be paid to the Agents pursuant to Sections 2.03, 2.09 and 10.04 and on or before the Closing Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(i) The Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent, 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 Borrowers and the Administrative Agent).
(j) No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(k) There shall not have occurred any disruption or material adverse change in the United States financial or capital markets in general that has had, in the reasonable opinion of the Administrative Agent, a material adverse effect on the market for loan syndications or adversely affecting the syndication of the Loans.
(l) Each Lender shall have received final credit approval to enter into the Agreement and the other Loan Documents (to which it is a party) and for its applicable Commitment, and to perform its obligations thereunder.
(m) The Agents shall have completed, and be satisfied with, its corporate and legal due-diligence of each Loan Party (including, but not limited to solvency), its examination of the Collateral, the Stores and distribution centers of the Loan Parties, and the capital structure of the Loan Parties. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Iparty Corp)
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed counterparts of each Guaranty from each Material Subsidiary sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(iii) the Security Agreement executed by the Borrowers Borrower, each Material Subsidiary and the Administrative Agent;
(iv) executed counterparts of the Intercreditor Agreement executed by each party thereto;
(v) Notes executed by the Borrower in favor of each Lender requesting a NoteNotes;
(iiivi) such certificates of resolutions or other action, incumbency certificates (including specimen signatures) and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(ivvii) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vviii) a favorable opinion of each of Xxxxxx & Xxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxx Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit G and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(viix) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization stating that no such consents, licenses or approvals are so required;
(x) a certificate signed by a Responsible Officer of the Lead Borrower and its Subsidiaries from the Initial Cap Table, certifying (E) that executed copies of the Spin-Off Agreements are attached thereto and (FA) that the Spin-Off shall conditions specified in Sections 4.02(a) and (b) have occurred, and been satisfied; (B) that there has been no event or circumstance since the senior credit facilities date of the B&N Parties have closed on Audited Financial Statements that has had or substantially simultaneously with could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Total Leverage Ratio and Consolidated Senior Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(viixi) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on December 31, 2006, signed by a Responsible Officer of the Borrower;
(xii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viiixiii) a certificate from the chief financial officer of the Lead Borrowersuch other assurances, satisfactory in form and substance to certificates, documents, consents or opinions as the Administrative Agent, attesting to the Solvency of L/C Issuer, the Loan Parties on a consolidated basis as of Swing Line Lender or the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan PartiesRequired Lenders reasonably may require; and
(xixiv) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction an executed copy of the Collateral Agent and Prudential Agreement as defined in the ArrangersIntercreditor Agreement.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been received from paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, 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).
(d) The Administrative Agent and its counsel shall be satisfied that the security interests described in the Security Agreement have been perfected and such security interests constitute first liens on the Collateral in favor of the Administrative Agent for the benefit of the Lenders other than subject to the Lead Lenders executing this rights of parties to the Intercreditor Agreement.
(e) The Closing Date shall have occurred on or before June 1, 2007. 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 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 Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Northwest Pipe Co)
Conditions of Initial Credit Extension. The obligation of the LC each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies “PDFs” (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 AgentAgent and each Lender:
(i) executed counterparts of this Agreement Agreement, the Guaranties and the applicable Security Instruments, sufficient in number for distribution to the Administrative Agent, each Lender Lender, the Company and the Lead Foreign Borrower;
(ii) a Note Notes executed by each of the Borrowers in favor of each Lender requesting a Notethat has requested Notes;
(iii) such certificates of certificates, resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers Officers, secretaries or assistant secretaries (or other individuals performing similar functions) of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Loan Party Parties is validly existing, in good standing or the equivalent thereof (to the extent applicable) and qualified to engage in business in each its jurisdiction where its ownership, lease of incorporation or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectorganization;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, Parties including special counsel to the Loan PartiesForeign Borrower in Luxembourg, and special counsel to the Foreign Guarantor in Poland, in each case, addressed to the Administrative Agent and each Lender (and expressly permitting reliance by successors and assigns of the Administrative Agent and each Lender), as to such the matters concerning the Loan Parties and the Loan Documents as the Administrative Agent or the Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) a certificate for each Company and the Foreign Borrower, as applicable, signed by a Responsible Officer thereof certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect and (C) the current Debt Ratings; and
(viii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any L/C Issuer, the Swing Line Lender or the Required Lenders reasonably may require.
(b) The Administrative Agent shall have received evidence that all satisfactory to it of the insurance required to be maintained by the Loan Parties pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;Security Agreement.
(viiic) The Administrative Agent shall have received the results of a certificate from the chief financial officer of the Lead BorrowerLien search (including a search as to judgments and tax matters), satisfactory in form and substance reasonably satisfactory thereto, made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in assets of the same type as the Collateral of such Loan Party, indicating among other things that the assets of each such Loan Party are free and clear of any Lien (except for Liens permitted pursuant to Section 7.01).
(d) Any fees and expenses required to be paid on or before the Closing Date under the Fee Letters or under any Loan Document shall have been paid.
(e) Unless waived by the Administrative Agent, attesting the Company and the Foreign Borrower, as applicable, each shall have paid all fees, 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 Company and the Administrative Agent).
(f) The Administrative Agent shall have received a Solvency Certificate signed by a Responsible Officer of the Company as to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date Company and its Subsidiaries, both before and after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created initial Borrowings under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersother transactions contemplated hereby.
(bg) Not less than $100,000,000 in Aggregate Commitments At least three (3) Business Days prior to the proposed Closing Date, and upon the reasonable request of any Lender, the Company shall have been provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act, and any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
(h) Each Lender shall have obtained all applicable licenses, consents, permits and approvals as deemed necessary by such Lender in order to execute and perform the transactions contemplated by the Loan Documents. 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 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerParent;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) require, approving the authority of each Loan Party to enter into terms of, and the transactions contemplated by, this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party party, and (B) 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 or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party of the Borrowers and Guarantors is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each caseopinion, addressed to the Administrative Agent, Singapore Loan Agent and each Lender Lender, of (A) in-house counsel to the U.S. Borrowers and Guarantors as to the matters set forth in Sections 5.01(a), (b) and (c) hereof, (B) Xxxxxxxx & Xxxxxxxx LLP, outside counsel to the Loan Parties as to the other matters set forth in Exhibit G and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request request, and (includingC) Xxxxx Xxxxxx Alliance, without limitationLLC, with respect Singapore counsel to enforceability, due authorization Xxxxxx Singapore as to the matters set forth in Exhibit G applicable to Xxxxxx Singapore and perfection such other matters of Singapore law as the Liens in favor of the Collateral Agent)Required Lenders may reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) a certificate signed by a Responsible Officer of each Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Parent ended on March 28, 2008, signed by a Responsible Officer of the Parent;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viiix) a certificate from evidence that the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of Existing Credit Agreement has been or concurrently with the Closing Date after giving effect is being terminated and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released, and the Existing Letters of Credit have been made subject to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Partiesa separate reimbursement agreement with Silicon Valley Bank; and
(xi) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, 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 Borrowers and the Administrative Agent).
(d) The Closing Date shall have occurred on or before June 30, 2008. 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 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead each Borrower;
(ii) a Note executed by the Borrowers each Borrower in favor of each Lender requesting a Note;
(iii) executed counterparts of each of the other Loan Documents;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) and attaching thereto certified copies of the Organization Documents of each Loan Party’s Organization Documents and ;
(v) such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vvi) a favorable opinion of each of Xxxxxx & Xxxxxx (A) Xxxxxxx Procter LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and as (B) Xxxxxxx Xxxxx & Xxxxxxxxx LLP, counsel to such matters concerning the Loan Parties Saucony Canada, Inc., in each case, in form and the Loan Documents as substance satisfactory to the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the Acquisition and the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of the Lead Borrower and its Subsidiaries from the Initial Cap Table, Borrowers certifying (E) that executed copies of the Spin-Off Agreements are attached thereto and (FA) that the Spin-Off shall conditions specified in Sections 4.2(a) and (b) have occurred, been satisfied and (B) certifying as to the senior credit facilities calculation of the B&N Parties have closed on or substantially simultaneously with the Closing DateConsolidated EBITDA specified in clause (xvi) below;
(viiix) a duly completed Compliance Certificate as of the last day of the last fiscal quarter ended for each of SRC and Target, with the Consolidated Leverage Ratio and Consolidated Tangible Net Worth therein to be calculated on a pro forma basis giving effect to the Acquisition, signed by a Responsible Officer of the Borrowers;
(x) (A) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effecteffect and (B) certificates of insurance from an independent insurance broker dated as of the Closing Date, identifying insurers, types of insurance, insurance limits, and policy terms, and otherwise describing the insurance obtained in accordance with this Agreement;
(viiixi) payoff letters evidencing that the Existing Credit Agreements have been or concurrently with the Closing Date are being terminated and all Liens securing obligations under the Existing Credit Agreements have been or concurrently with the Closing Date are being released;
(xii) a certificate from the chief financial officer signed by a Responsible Officer of the Lead Borrower, satisfactory in form Borrowers attaching true and substance to the Administrative Agent, attesting to the Solvency complete copies of the Loan Parties on a consolidated basis Acquisition Documents;
(xiii) the Audited Financial Statements, the unaudited pro forma financial statements and the forecasts, each referred to in Section 5.5;
(xiv) an officer’s certificate signed by the treasurer of SRC and dated as of the Closing Date after giving effect as to the solvency of SRC and the Subsidiaries following the consummation of the Acquisition and the other transactions contemplated hereby;
(ixxv) results of UCC searches (and the Security Documentsequivalent thereof in all foreign jurisdictions) with respect to the Collateral, each duly executed by indicating no Liens other than Liens permitted under Section 7.1 and otherwise in form and substance satisfactory to the applicable Loan PartiesAdministrative Agent;
(xvi) satisfactory evidence that Consolidated EBITDA (calculated on a pro forma basis after giving effect to the Acquisition and the other transactions contemplated hereby) for the twelve months ended as of the last day of the last fiscal quarter ended for each of SRC and Target, was not less than $62,000,000;
(xvii) all stock certificates and related instruments of transfer with respect to the Equity Interests of each Subsidiary pledged to the Administrative Agent pursuant to the Pledge Agreement;
(xviii) (A) a certificate signed by a Responsible Officer of the Borrowers certifying (x) all other Loan Documents, each the value of SRC and the Subsidiaries of SRC existing immediately prior to the Acquisition and (y) the value of the Target and (B) a duly executed by the applicable Loan Partiescompleted Federal Reserve Form U-1; and
(xixix) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 The Security Documents shall be effective to create in Aggregate Commitments favor of the Administrative Agent a legal, valid and enforceable first (except for Liens permitted by Section 7.1 entitled to priority under applicable law) security interest in and Lien upon the Collateral. All filings, recordings, deliveries of instruments and other actions necessary or desirable in the opinion of the Administrative Agent to protect and preserve such security interests shall have been duly effected. The Administrative Agent shall have received evidence thereof in form and substance satisfactory to the Administrative Agent.
(c) The Acquisition shall have been consummated in accordance with the terms of the Acquisition Documents (as amended or modified with the consent of the Lenders as required below) and in compliance with applicable law and regulatory approvals and the terms and conditions of the Acquisition Documents shall not have been altered, amended or otherwise changed or supplemented or any condition therein waived without the prior written consent of the Lenders.
(d) All applicable waiting periods without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on the Borrowers and the Subsidiaries in connection with the Acquisition and the other transactions contemplated hereby or that could seek or threaten any of the foregoing shall have expired.
(e) No event or circumstance since June 1, 2005 shall have occurred that has had or could be reasonably expected to have, either individually or in the aggregate, a Closing Material Adverse Effect or a Target Material Adverse Effect.
(f) No changes or developments shall have occurred, and no new or additional information, shall have been received or discovered by the Administrative Agent or the Lenders regarding any Borrower, the Target and/or their respective Subsidiaries or the Acquisition after June 1, 2005 that purports to materially and adversely affect the Acquisition or the other transactions contemplated hereby.
(g) The Lenders shall have received satisfactory evidence of the absence of any action, suit, investigation or proceeding pending or, to the knowledge of the Borrowers, threatened in any court or before any arbitrator or governmental authority that would reasonably be expected to have a Material Adverse Effect.
(h) The Lenders shall have received satisfactory evidence that all loans made by the Lenders to the Borrowers or any of its affiliates shall be in full compliance with the Federal Reserve’s margin regulations.
(i) The Lenders shall be satisfied that (i) each Borrower, the Target and their respective Subsidiaries will be able to meet its obligations under all Plans, (ii) the Plans are, in all material respects, funded in accordance with the minimum statutory requirements, and (iii) no ERISA Event has occurred.
(j) Any fees required to be paid on or before the Closing Date shall have been paid.
(k) Unless waived by the Administrative Agent, the Borrowers shall have paid all fees, charges and disbursements of counsel to 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 Borrowers and the Administrative Agent).
(l) The Closing Date shall have occurred on or before November 30, 2005. Without limiting the generality of the provisions of Section 9.4, for purposes of determining compliance with the conditions specified in this Section 4.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Stride Rite Corp)
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2April 30, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have BNED Credit Agreement has closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
(c) After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment (including, without limitation, the Existing Letters of Credit), Availability shall be not less than $300,000,000.
(d) The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date and relating to the fiscal month ended on July 4, 2015, duly executed by a Responsible Officer of the Lead Borrower.
(e) All fees required to be paid to the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(f) The Administrative Agent and each Lender shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”).
(g) The Lead Lenders shall be reasonably satisfied with the terms and conditions, taken as a whole, of the Spin-Off Agreements to the extent material to the interests of the Lenders.
(h) The Spin-Off shall have occurred, and the BNED Credit Agreement shall close on or substantially simultaneously with the Closing Date.
(i) The payoff of the Existing Credit Agreement (including the termination of commitments thereunder and agreements to terminate, or assign to the Collateral Agent for the benefit of the Secured Parties, all Liens arising thereunder) shall be effected on the Closing Date in accordance with the terms and conditions of the Payoff Letter (including, if applicable, the provision of cash collateral or a Letter of Credit with respect to any Letters of Credit then issued and outstanding under the Existing Credit Agreement). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in 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 Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender and L/C Issuer to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, telecopies or telecopies other electronic image scan transmission (e.g., “pdf” or “tif “ via e-mail) (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan PartyParty or the Lenders, as applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerAgreement;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be become a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable an opinion of each of Xxxxxx & Xxxxxx (i) Blank Rome LLP, U.S. counsel to the Loan Parties, and Cravath(ii) Axxxx & Mxxxx, Swaine & Xxxxx LLP, Honduras counsel to the Loan PartiesAgent, in each case, addressed to the Administrative Agent and each Lender and Lenders, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (bSections 4.01 and 4.02(b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, the date of the most recent audited financial statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) to the Solvency of the Loan Parties, taken as a whole, as of the Closing Date after giving effect to the transactions contemplated hereby, and (D) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate payoff letter from Wxxxx Fargo Capital Finance, LLC, agent for the chief financial officer of lenders under the Lead Borrower, Existing Credit Agreement reasonably satisfactory in form and substance to the Administrative Agent, attesting to Agent evidencing that the Solvency of the Loan Parties on a consolidated basis as of Existing Credit Agreement have been or concurrently with the Closing Date after giving effect to are being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the transactions contemplated herebyExisting Credit Agreement have been or concurrently with the Closing Date are being released;
(ix) the Security DocumentsDocuments and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xi) results of searches or other evidence reasonably satisfactory to the Agent (in each case dated as of a date reasonably satisfactory to the Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, and releases or subordination agreements reasonably satisfactory to the Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(xii) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been been, or concurrently with the Closing Date are, so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Agent, (B) DDA Notifications and Blocked Account Agreements required pursuant to Section hereof, (C) control agreements with respect to the Loan Parties’ securities and investment accounts, (D) Collateral Access Agreements as required by the Agent for locations holding Collateral of a value in excess of $100,000, and (E) Customs Broker/Carrier Agreement as required by Agent for each of customs brokers, freight forwarders, consolidators and/or carriers used by the ArrangersLoan Parties; and
(xiii) such other assurances, certificates, documents, consents or opinions as the Agent or its counsel reasonably may require.
(b) Not After giving effect to (i) the first funding under the Loans, and (ii) (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $100,000,000 3,500,000.
(c) The Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the period no later than the end of the previous week, and executed by a Responsible Officer of the Lead Borrower.
(d) The Agent shall be reasonably satisfied that there has been no Material Adverse Effect since the date of the most recent audited financial statements.
(e) The Agent shall have received and approved the Borrowers’ Business Plan.
(f) The Agent shall have received and be reasonably satisfied with all background investigations reports received with respect to the owners of the Equity Interests of the Borrowers and the management of the Loan Parties.
(g) There shall not be pending any litigation or other proceeding, the result of which, either individually or in Aggregate Commitments the aggregate, could reasonably be expected to have a Material Adverse Effect.
(h) There shall not have occurred any default of any Material Contract of any Loan Party.
(i) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(j) All fees and expenses required to be paid to the Agent on or before the Closing Date, including fees, charges and disbursements of counsel to the Agent to the extent invoiced prior to or on the Closing Date, shall have been paid in full, and all fees and expenses required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(k) The Agent and the Lenders shall have received from all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
(l) The Agent and the Lenders other than shall have received audited financial statements of the Lead Lenders executing Borrower and its Subsidiaries for the fiscal year ended December 31, 2012 and the fiscal year ended December 31, 2011.
(m) Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this AgreementSection , 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 reasonably satisfactory to a Lender unless the Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies electronic transmissions by portable document format (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 reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerBorrowers;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx (1) Mxxxxx, Xxxxx & Xxxxxx Bockius, LLP, counsel to the Loan Parties, (2) local counsel to the Borrowers in each state where there is Eligible Real Estate and Cravath, Swaine & Xxxxx LLP, (3) local counsel to the Loan Parties, Parties in each casestate where such Loan Parties are organized, each addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Administrative Borrower certifying (A) that the conditions specified in clauses (a), Sections 4.02(a) and (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, Effect and (C) other than those which, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals have been obtained and are in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viii) a payoff letter from Bank of America, N.A., agent for the lenders under the Existing Credit Agreement evidencing that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder are being paid in full, and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;
(ix) a certificate from the chief financial officer of the Lead Administrative Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on taken as a consolidated basis whole as of the Closing Date after giving effect to the transactions contemplated hereby;
(ixx) the Security DocumentsDocuments (including, without limitation, the Mortgages and certificates evidencing any stock being pledged thereunder, together with undated stock powers executed in blank), each duly executed by the applicable Loan Parties;
(xxi) all other Loan Documents, each duly executed by the applicable Loan Parties; and;
(xiA) appraisals by a third party appraiser engaged by the Collateral Agent of all Inventory and Prescription Files of the Borrowers, the results of which are reasonably satisfactory to the Collateral Agent and (B) a written report regarding the results of a field examination of the Borrowers, which shall be reasonably satisfactory to the Collateral Agent;
(xiii) results of searches or other evidence reasonably satisfactory to the Collateral Agent (in each case dated as of a date reasonably satisfactory to the Collateral Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any Mortgages, and releases or subordination agreements reasonably satisfactory to the Collateral Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Collateral Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made;
(A) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments (other than the Mortgages) shall have been so filed, registered or recorded, in each case, recorded to the reasonable satisfaction of the Collateral Agent (or arrangements satisfactory to the Collateral Agent in its discretion for such filing, registration or recordation shall have been made), and (B) the DDA Notifications, Credit Card Notifications, and Blocked Account Agreements required pursuant to Section 6.13 hereof;
(xv) evidence that all other actions that the Collateral Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages has been taken;
(xvi) with respect to each parcel of Eligible Real Estate, fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”) in form and substance, with endorsements and in amounts reasonably acceptable to the Collateral Agent, issued by First American Title Insurance Company or other title insurers reasonably acceptable to the Collateral Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all Liens (including, but not limited to, mechanics’ and materialmen’s Liens) excepting only Permitted Encumbrances 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) as the Collateral Agent may deem reasonably necessary or desirable;
(xvii) With respect to each parcel of Eligible Real Estate, an environmental assessment report, in form and substance reasonably satisfactory to the Collateral Agent, from ARI Consultants, which report shall identify existing and potential environmental concerns and shall quantify related costs and liabilities, associated with any facilities of the Borrowers or any of their Subsidiaries, and the ArrangersCollateral Agent shall be reasonably satisfied with the nature and amount of any such matters;
(xviii) an appraisal of each of the properties described in the Mortgages complying with the requirements of FIRREA by a third party appraiser engaged by the Collateral Agent and otherwise in form and substance reasonably satisfactory to the Collateral Agent; and
(xix) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(b) Not After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued (or deemed issued) at, or immediately subsequent to, such establishment, Excess Availability shall be not less than $100,000,000 78,000,000.
(c) The Administrative Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the Fiscal Period ended on December 3, 2011 and executed by a Responsible Officer of the Administrative Borrower.
(d) The Administrative Agent shall be reasonably satisfied with the capital structure (including outstanding indebtedness) of Parent and its Subsidiaries.
(e) The Administrative Agent shall be reasonably satisfied that any financial statements delivered to it fairly present in Aggregate Commitments all material respects the business and financial condition of the Loan Parties and that there has been no Material Adverse Effect since the date of the most recent financial information delivered to the Administrative Agent.
(f) The Administrative Agent shall have received and be reasonably satisfied with (i) forecasted consolidated financial statements of Parent and its Subsidiaries, in form and substance reasonably satisfactory to the Administrative Agent, consisting of (A) balance sheets, income statements, and cash flow statements (including a calculation of Availability) on a monthly basis for fiscal year 2012, and (B) balance sheets, income statements, and cash flow statements (including a calculation of Availability) on an annual basis for each Fiscal Year thereafter through the Fiscal Year in which the Maturity Date occurs, and (ii) internally prepared balance sheets, income statements, and a cash flow statement as of the Fiscal Quarter ended October 8, 2011.
(g) There shall not be pending any action, suit, investigation, litigation or other proceeding, the result of which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(h) There shall not have occurred any default of any Material Contract of any Loan Party which could reasonably be expected to have a Material Adverse Effect.
(i) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(j) All fees required to be paid to the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid in full.
(k) The Borrowers shall have paid all reasonable fees, charges and disbursements of the Agents, the Arrangers and the Lenders to the extent invoiced at least two (2) Business Days prior to the Closing Date.
(l) The Agents and the Arrangers shall have received, at least ten (10) days prior to the Closing Date, all documentation and other information reasonably requested by the Agents and the Arrangers in writing and reasonably determined to be required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
(m) No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Nash Finch Co)
Conditions of Initial Credit Extension. The obligation of the LC Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 Agent and each of the Administrative AgentLenders:
(i) executed counterparts of this Agreement Agreement, all Collateral Documents, and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers Borrower in favor of each Lender requesting that requests a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable an opinion of each of Xxxxxx Fulbright & Xxxxxx LLPXxxxxxxx, counsel to the Loan Parties, and Cravathof Xxxxxx, Swaine Gruenert & Xxxxx LLPXxxxxxxxxxx, P.L.L.C., counsel to the Loan PartiesLandTel Communications, L.L.C., in each case, case addressed to the Administrative Agent and each Lender and Lender, as to such the matters set forth concerning the Loan Parties and the Loan Documents as the Administrative Agent may in form and substance reasonably request (including, without limitation, with respect satisfactory to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent);
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Dateso required;
(vii) a certificate signed by a Responsible Officer of Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect;
(viiiix) a certificate from the chief financial officer of the Lead Subordination Agreement executed among Minority Member, Agent, and Borrower, satisfactory in form and substance with respect to the Administrative AgentPut Option, attesting on such terms as are acceptable to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan PartiesAgent its sole discretion;
(x) all other Loan Documents, each duly executed by evidence that Borrower has satisfied the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction requirements of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.Section
Appears in 1 contract
Samples: Credit Agreement (RigNet, Inc.)
Conditions of Initial Credit Extension. The obligation of the LC any L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Receipt by the Administrative Agent’s receipt Agent of the following, each :
(i) executed counterparts of which shall be originals or telecopies (followed promptly by originals) unless otherwise specifiedthis Agreement and the other Loan Documents, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (orParty and, in the case of certificates of governmental officialsthis Agreement, a recent date before the Closing Date) and by each in form and substance satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerLender;
(ii) copies of the Organization Documents of each Loan Party certified to be true and complete as of a Note executed recent date by the Borrowers in favor appropriate Governmental Authority of each Lender requesting the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a Notesecretary or assistant secretary of such Loan Party to be true and correct as of the Closing Date;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that the Borrower and each Loan Party is validly existing, in good standing and qualified to engage in business in each its jurisdiction where its ownership, lease of organization or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effectformation;
(v) a favorable opinion opinions of each of Xxxxxx Xxxxxxx Xxxxxxx & Xxxxxx Xxxxxxxx LLP, special counsel to the Loan PartiesParties and Xxxxxx X. Post, Senior Vice President, General Counsel and CravathCorporate Secretary of the Borrower and Holdings, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)Lender;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower certifying (A) that the conditions specified in clauses (a), (b) and (c) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2December 31, 2015, 2008 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse EffectEffect and (B) the current Debt Ratings; and
(vii) a certificate signed by a Responsible Officer of the Borrower certifying that the conditions specified in Sections 5.02(a) and (b) have been satisfied;
(b) Any fees required to be paid pursuant to Section 2.09 on or before the Closing Date shall have been paid to the extent invoiced at least one Business Day prior to the Closing Date.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced at least one Business Day prior to the Closing Date.
(Cd) either that The Indebtedness of Holdings, the Borrower and its Subsidiaries outstanding under the Existing Credit Agreement shall have been repaid and all commitments to provide loans thereunder shall have been terminated, in each case, on terms and conditions reasonably satisfactory to the Administrative Agent.
(1e) no consents, licenses or All material governmental and third party approvals are required necessary in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all such consents, licenses and approvals financing contemplated hereby shall have been obtained and are be in full force and effect, (D) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Table, (E) that executed copies of the Spin-Off Agreements are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangers.
(b) Not less than $100,000,000 in Aggregate Commitments shall have been received from Lenders other than the Lead Lenders executing this Agreement.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals originals, PDFs or telecopies (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 reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could qualify in any such jurisdiction would not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx & Xxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, in each case as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower Borrower, certifying that (A) that the conditions specified in clauses (a), (bSections 4.02(a) and (c4.02(b) of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder))satisfied, (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by such Loan Party Party, and the validity against such Loan Party Party, of the Loan Documents to which it is a party, or except for (21) that all such consents, licenses and approvals have been obtained and by the Loan Parties prior to the Effective Date, each of which are in full force and effecteffect as of the Effective Date, or (D2) there have not been any material change those the failure of which to obtain, individually or in the capital structure aggregate, would not have, and capitalization would not reasonably be expected to have, a Material Adverse Effect, and (C) as of the Lead Borrower and its Subsidiaries from Effective Date after giving effect to the Initial Cap Tabletransactions contemplated hereby, (E) that executed copies of the Spin-Off Agreements Loan Parties on a Consolidated basis are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing DateSolvent;
(vii) a Borrowing Base Certificate dated the Effective Date, relating to the month ended on December 1, 2012, and executed by a Responsible Officer of the Lead Borrower;
(viii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent Agents required under the Loan Documents have been obtained and are in effect;
(viii) a certificate from the chief financial officer of the Lead Borrower, satisfactory in form and substance to the Administrative Agent, attesting to the Solvency of the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security DocumentsDocuments and copies of certificates evidencing any stock being pledged thereunder, together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, [RESERVED];
(xi) results of searches (in each duly executed by case dated as of a date reasonably satisfactory to the applicable Collateral Agent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases, satisfactions and discharges of any mortgages, and releases or subordination agreements reasonably satisfactory to the Collateral Agent are being tendered concurrently with such extension of credit or other arrangements reasonably satisfactory to the Collateral Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xiA) all documents and instruments, including Uniform Commercial Code financing statements, required by law or reasonably requested by the Collateral Agent and the Arrangers Law to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recordedrecorded or prepared in forms ready to be filed, in each case, registered or recorded and (B) the Credit Card Notifications and Blocked Account Agreements required pursuant to the reasonable satisfaction of the Collateral Agent and the ArrangersSection 6.13 hereof.
(b) Not After giving effect to (i) the first funding under the Loans, (ii) any charges to the Loan Account made in connection with the establishment of the credit facility contemplated hereby and (iii) all Letters of Credit to be issued at, or immediately subsequent to, such establishment, Availability shall be not less than $100,000,000 30,000,000.
(c) There shall not have occurred since September 30, 2010 any event or condition that has had or would be reasonably expected to have, either individually or in Aggregate Commitments the aggregate, a Material Adverse Effect.
(d) [RESERVED]
(e) [RESERVED]
(f) There shall not have occurred any default of any Material Contract of any Loan Party which could reasonably be expected to have a Material Adverse Effect.
(g) The consummation of the transactions contemplated hereby shall not violate any applicable Law or any Organization Document.
(h) There shall be no Indebtedness of the Loan Parties outstanding immediately after the Effective Date other than the Obligations and the Indebtedness permitted pursuant to Section 7.03.
(i) All fees required to be paid to any of the Agents or the Arrangers on or before the Effective Date shall have been paid in full, and all fees required to be paid to the Lenders on or before the Effective Date shall have been paid in full.
(j) The Borrowers shall have paid all fees, charges and disbursements of counsel to the Administrative Agent and MLPFS to the extent invoiced at least one (1) Business Day prior to the Effective 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 Borrowers and the Administrative Agent).
(k) The Administrative Agent shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”). Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Effective Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Tops Holding Corp)
Conditions of Initial Credit Extension. The obligation of the LC each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction or waiver of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 AgentAgent and each of the Lenders:
(i) executed counterparts of (A) this Agreement, (B) the Security Agreement, (C) the Pledge Agreement, (D) the Escrow and Security Agreement, (E) the Sonic Financial Pledge Agreement and (F) the Subsidiary Guaranty, in each case, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead BorrowerCompany;
(ii) a Note executed by the Borrowers Company in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(iv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in the respective jurisdictions specified in Schedule 4.01, which includes each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of each of Xxxxxx Xxx Xxxxx & Xxxxxx Xxxxxxxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to the matters set forth in Exhibit K (which shall include matters of Delaware, North Carolina, South Carolina and Federal Law) and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent Required Lenders may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vi) a favorable opinion of local counsel to the Loan Parties in Florida, Texas, California, Alabama, and Tennessee, addressed to the Administrative Agent and each Lender in form and substance satisfactory to the Administrative Agent;
(vii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of the Lead Borrower and its Subsidiaries from the Initial Cap Table, Company certifying (E) that executed copies of the Spin-Off Agreements are attached thereto and (FA) that the Spin-Off shall conditions specified in Sections 4.02(a), (b) and (c) have occurredbeen satisfied, and (B) that there has been no event or circumstance since the senior credit facilities date of the B&N Parties have closed on Audited Financial Statements that has had or substantially simultaneously with could be reasonably expected to have, either individually or in the Closing Dateaggregate, a Material Adverse Effect;
(viiix) a certificate signed by the chief executive officer, chief financial officer, treasurer or chief accounting officer (or in the case of Sonic Financial, a president or vice president) of each Loan Party certifying that each Loan Party is Solvent, after giving effect to this Agreement and the other Loan Documents and the Indebtedness pursuant hereto and thereto;
(x) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Company ended on September 30, 2009, signed by a Responsible Officer of the Company; provided that, Indebtedness outstanding as of September 30, 2009 under the 6.00% Senior Secured Convertible Notes issued by the Company pursuant to the Indenture dated as of May 7, 2009 between the Company, the guarantors set forth therein and U.S. Bank National Association, as Trustee, may be excluded from all calculations thereunder;
(xi) a duly completed Revolving Borrowing Base Certificate dated as of the Closing Date certifying as to the Revolving Borrowing Base as of November 30, 2009, signed by a Responsible Officer of the Company;
(xii) a copy of (A) each standard form of Franchise Agreement for each vehicle manufacturer or distributor and (B) each executed Framework Agreement;
(xiii) duly executed consents and waivers required pursuant to any Franchise Agreement or Framework Agreement;
(xiv) executed counterparts of the Master Intercreditor Agreement, including all Silo Lender exhibits thereto;
(xv) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have has been obtained and are is in effect, including endorsements naming the Administrative Agent (on behalf of the Secured Parties) as an additional insured and loss payee, as the case may be, on all such insurance policies maintained with respect to properties of the Company or any Loan Party constituting part of the Collateral;
(viiixvi) evidence that the Company and the New Vehicle Borrowers (as defined in the Existing Credit Agreement) have terminated the commitments under the New Vehicle Floorplan Facility and the Used Vehicle Floorplan Facility (each as defined in the Existing Credit Agreement) and all loans thereunder have been repaid in the amounts set forth in the floorplan paydown letter dated on or about the date hereof between the Administrative Agent and the Company (the “Existing Floorplan Paydown Letter”);
(xvii) consolidating balance sheets (including a certificate from separate line item for Eligible Used Vehicle Inventory) for the chief financial officer Company and each Subsidiary as at the end of September 30, 2009, and the related consolidating statements of income or operations, all in reasonable detail prepared by management of the Lead BorrowerCompany or such Subsidiary, satisfactory in each case with subtotals for (a) each Subsidiary, (b) all New Vehicle Borrowers (excluding the results of any Dual Subsidiaries) and (c) all Silo Subsidiaries grouped by each Silo Lender, and in each case prior to intercompany eliminations;
(xviii) forecasts (including assumptions) prepared by the management of the Company of consolidated balance sheets, income statements and cash flow statements of the Company and its Subsidiaries in form and substance reasonably satisfactory to the Administrative Agent for each of the first three years following the Closing Date;
(xix) if required by the Administrative Agent in its sole discretion, satisfactory results of audits of the Collateral, provided that, whether or not any such audit is performed, the Administrative Agent shall be entitled to rely on information provided by any existing lender of the Company or its Subsidiaries as to any Vehicles and existing new vehicle facilities being refinanced or paid down on the Closing Date;
(xx) (x) delivery by the Company and each applicable Loan Party owning any Equity Interests required to be pledged pursuant to this Agreement, the Pledge Agreement or the Sonic Financial Pledge Agreement of all stock certificates evidencing such pledged Equity Interests, accompanied in each case by duly executed stock powers (or other appropriate transfer documents) in blank affixed thereto and (y) delivery by the Company and each other applicable Loan Party owning any Equity Interests required to be delivered in escrow pursuant to the Escrow and Security Agreement of all stock certificates evidencing such Equity Interests;
(xxi) UCC financing statements or amendments to previously filed UCC financing statements for filing in all places required by applicable law to perfect the Liens of the Administrative Agent for the benefit of the Secured Parties under the Security Instruments as a valid and perfected Lien (with the priority described therein) as to items of Collateral in which a security interest may be perfected by the filing of financing statements, and such other documents and/or evidence of other actions as may be necessary under applicable law to perfect the Liens of the Administrative Agent for the benefit of the Secured Parties under the Security Instruments as a valid and perfected Lien in and to such other Collateral as the Administrative Agent may require;
(xxii) UCC search results with respect to the Company and the Loan Parties showing only Liens acceptable to the Administrative Agent (or pursuant to which arrangements satisfactory to the Administrative Agent shall have been made to remove any unacceptable Liens promptly after the Closing Date),
(xxiii) such duly executed Landlord Waivers for locations of the New Vehicle Borrowers not already in effect pursuant to the Existing Credit Agreement, as may be requested by the Administrative Agent in its sole discretion;
(xxiv) a certificate signed by a Responsible Officer of the Company certifying as to the status of the Unrestricted Subsidiaries;
(xxv) evidence that all floorplan financing arrangements among Chrysler Financial Services Americas LLC and any Subsidiary have been repaid and terminated and all Liens securing obligations thereunder have been released;
(xxvi) executed counterparts of an Assignment and Assumption Agreement (the dated as of the date hereof among all of the lenders party to the Existing Credit Agreement and the Administrative Agent reflecting the assignments described in Section 1.01; and
(xxvii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, attesting to any L/C Issuer, the Solvency of Swing Line Lender or the Loan Parties on a consolidated basis as of the Closing Date after giving effect to the transactions contemplated hereby;
(ix) the Security Documents, each duly executed by the applicable Loan Parties;
(x) all other Loan Documents, each duly executed by the applicable Loan Parties; and
(xi) all documents and instruments, including Uniform Commercial Code financing statements, required by law or Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been received from Lenders other than paid.
(c) Unless waived by the Lead Lenders executing Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to 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 Company and the Administrative Agent).
(d) The Floorplan Credit Facility shall have been consummated substantially simultaneously with the consummation of this Agreement. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in 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 hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Initial Credit Extension. The obligation of the LC L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction or waiver in writing of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (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 this Agreement Agreement, the Guaranty and the Pledge Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii) a Note executed by the Borrowers Borrower in favor of each Lender requesting a Note;
(iii) stock certificates, stock powers or similar documents or instruments as may be required pursuant to the terms of the Pledge Agreement;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing (A) the authority of each Loan Party to enter into this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(ivv) copies of each Loan Party’s Organization Documents and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vvi) a favorable opinion of each of Xxxxxx & Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel to the Loan Parties, and Cravath, Swaine & Xxxxx LLP, counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender and Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request (including, without limitation, with respect to enforceability, due authorization and perfection of the Liens in favor of the Collateral Agent)request;
(vivii) a certificate signed by of a Responsible Officer of the Lead Borrower certifying each Loan Party either (A) that the conditions specified in clauses (a), (b) and (c) attaching copies of Section 4.02 have been satisfied (after giving effect to the consummation of the transactions contemplated under this Agreement and the other Loan Documents on the Closing Date (including any Loans made or Letters of Credit issued hereunder)), (B) that there has been no event or circumstance since May 2, 2015, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) either that (1) no all consents, licenses or and approvals are required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, or (2) that all and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (DB) there have not been any material change in the capital structure and capitalization of the Lead Borrower and its Subsidiaries from the Initial Cap Tablestating that no such consents, (E) that executed copies of the Spin-Off Agreements licenses or approvals are attached thereto and (F) that the Spin-Off shall have occurred, and the senior credit facilities of the B&N Parties have closed on or substantially simultaneously with the Closing Date;
(vii) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Collateral Agent required under the Loan Documents have been obtained and are in effectso required;
(viii) a certificate from the chief financial officer signed by a Responsible Officer of the Lead BorrowerBorrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, satisfactory in form and substance to (B) that there has been no event or circumstance since the Administrative Agent, attesting to the Solvency date of the Loan Parties on Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a consolidated basis as of the Closing Date after giving effect to the transactions contemplated herebyMaterial Adverse Effect;
(ix) a duly completed Compliance Certificate as of the Security Documentslast day of the fiscal quarter of the Borrower ended on July 31, each duly executed 2011, signed by a Responsible Officer of the applicable Loan PartiesBorrower;
(x) evidence that the Borrower’s existing line of credit with Sovereign Bank has been or concurrently with the Closing Date is being terminated and all other Loan DocumentsLiens securing obligations thereunder, each duly executed by if any, have been or concurrently with the applicable Loan PartiesClosing Date are being released; and
(xi) all documents and instrumentssuch other assurances, including Uniform Commercial Code financing statementscertificates, required by law documents, consents or opinions as the Administrative Agent, the L/C Issuer or the Required Lenders reasonably requested by the Collateral Agent and the Arrangers to be filed, registered or recorded to create or perfect the first priority Liens intended to be created under the Loan Documents and all such documents and instruments shall have been so filed, registered or recorded, in each case, to the reasonable satisfaction of the Collateral Agent and the Arrangersmay require.
(b) Not less than $100,000,000 in Aggregate Commitments Any fees required to be paid on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, 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). 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 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 Administrative Agent shall have received notice from Lenders other than such Lender prior to the Lead Lenders executing this Agreementproposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Analogic Corp)
