Conditions Precedent at Closing Date. The obligation of the Lenders to make Loans, and of any LC Issuer to issue Letters of Credit, on the Closing Date is subject to the satisfaction (or waiver thereof in accordance with Section 11.12) of each of the following conditions on or prior to the Closing Date: (a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) otherwise, written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart of this Agreement. (b) The Administrative Agent shall have received a written opinion (addressed to the Administrative Agent, the Lenders and the LC Issuers and dated the Closing Date) of each of (i) Xxxxxxxx & Xxxxx LLP, Delaware, New York and Texas counsel for the Loan Parties and (ii) Xxxxx Xxxxxx Xxxxxxxx LLP, Alaska and Washington counsel for the Loan Parties, in each case in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests counsel to deliver such opinions. (c) The Administrative Agent shall have received a certificate of each Loan Party, dated the Closing Date, substantially in the form of Exhibit E with appropriate insertions, or otherwise in form and substance reasonably satisfactory to the Administrative Agent, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section 4.01. (d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) copies of resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of Loan Documents to which it is a party, certified as of the Closing Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation. (e) The Administrative Agent shall have received all fees and other amounts previously agreed in writing by the Joint Lead Arrangers and the Borrower to be due and payable on or prior to the Closing Date, including, to the extent invoiced at least three (3) Business Days prior to the Closing Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party under any Loan Document. (f) The Collateral and Guarantee Requirement (other than in accordance with Section 6.14) shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate dated the Closing Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby; provided that if, notwithstanding the use by the Borrower of commercially reasonable efforts without undue burden or expense to cause the Collateral and Guarantee Requirement to be satisfied on the Closing Date, the requirements thereof (other than (a) the execution and delivery of the ABL Guarantee Agreement and the Collateral Agreement by the Loan Parties, (b) creation of and perfection of security interests in the Equity Interests of wholly-owned Domestic Subsidiaries that are Restricted Subsidiaries of the Borrower (provided that such Equity Interests are not Excluded Assets or owned or held by an Excluded Subsidiary), to the extent received from the Acquired Company and (c) delivery of Uniform Commercial Code financing statements with respect to perfection of security interests in the assets of the Loan Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code) are not satisfied as of the Closing Date, the satisfaction of such requirements shall not be a condition to the availability of the initial Loans on the Closing Date (but shall be required to be satisfied as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.14 or such later date as the Administrative Agent may otherwise reasonably agree). (g) Since April 13, 2015, there shall not have occurred a Material Adverse Effect (as defined in the Acquisition Agreement) with respect to the Acquired Companies. (h) The Joint Lead Arrangers shall have received the Audited Financial Statements, the Unaudited Financial Statements and the Pro Forma Financial Statements. (i) (A) The Specified Acquisition Agreement Representations shall be true and correct in all material respects and as of the Closing Date and (B) the Specified Representations shall be true and correct in all material respects on and as of the Closing Date. (j) The Acquisition shall have been consummated, or substantially simultaneously with the initial funding of Loans on the Closing Date, shall be consummated, in all material respects in accordance with the terms of the Acquisition Agreement, without giving effect to any modifications, amendments, consents or waivers by the Acquired Company to or of the Acquisition Agreement that are materially adverse to the Joint Lead Arrangers without the consent of each Joint Lead Arranger (such consent not to be unreasonably withheld, delayed or conditioned and provided that the Joint Lead Arrangers shall be deemed to have consented to such amendment, waiver or consent unless they shall object thereto within 48 hours after notice of such proposed amendment, waiver or consent) (it being understood that (x) any substantive modification, amendment, consent or waiver to the definition of Material Adverse Effect (as defined in the Acquisition Agreement as in effect on April 13, 2015) shall be deemed to be materially adverse to the interest of the Lenders and the Joint Lead Arrangers, (y) any increase in the purchase price of the Acquisition will be deemed not to be materially adverse to the Joint Lead Arrangers so long as such increase is funded by an increase in the Equity Issuance, and (z) any reduction in the purchase price of the Acquisition shall not be deemed to be material and adverse to the interests of the Joint Lead Arrangers but shall have been allocated to reduce the Term Loans and the Unsecured Notes pro rata). (k) The Refinancing shall have been consummated, or substantially concurrently with the initial funding of Loans on the Closing Date, shall be consummated. (l) The Lenders shall have received a certificate from the chief financial officer of the Borrower certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions, substantially the form of Exhibit N. (m) The Administrative Agent and the Joint Lead Arrangers shall have received, at least three (3) Business Days prior to the Closing Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least ten (10) Business Days prior to the Closing Date by the Administrative Agent or the Joint Lead Arrangers that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act. (n) The Equity Issuance shall have been consummated, or substantially concurrently with, or prior to, the initial funding of Loans on the Closing Date, shall be consummated. (o) The Loan Documents shall have been executed and delivered by all of the Term Loan Parties stated to be party thereto and the Borrower shall have received no less than (x) $700,000,000 of gross proceeds from the issuance of the Unsecured Notes in accordance with the Unsecured Notes Indenture and (y) $600,000,000 aggregate principal amount of loans under the Term Loan Facility. (p) The Borrower shall have delivered to the Administrative Agent a Borrowing Base Certificate dated as of July 29, 2015. (q) The Grantor Intercreditor Agreement Joinder to the ABL/Bond Intercreditor Agreement shall have been duly executed and delivered by the Acquired Company and each other Loan Party that is a Subsidiary thereof. Notwithstanding the foregoing, other than in the proviso in Section 4.01(f), the obligations of the Lenders to make Loans and the LC Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions shall have been satisfied (or waived pursuant to Section 9.02) at or prior to 5:00 p.m., New York City time, on the Closing Date (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time). For purposes of determining whether the conditions set forth in this Section 4.01 have been satisfied, by releasing its signature page hereto or to an Assignment and Agreement the Administrative Agent and each Lender party hereto shall be deemed to have consented to, approved, accepted or be satisfied with each document or other matter required hereunder to be consented to or approved by, or acceptable or satisfactory to, the Administrative Agent or such Lender, as the case may be.
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Samples: Credit Agreement (Builders FirstSource, Inc.), Credit Agreement (Builders FirstSource, Inc.), Credit Agreement (Builders FirstSource, Inc.)
Conditions Precedent at Closing Date. The obligation of the Lenders to make Loans, and of any LC Issuer to issue Letters of Credit, on the Closing Date is subject to the satisfaction (or waiver thereof in accordance with Section 11.12) of each of the following conditions on or prior to the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) otherwise, written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a written opinion (addressed to the Administrative Agent, the Lenders and the LC Issuers and dated the Closing Date) of each of (i) Xxxxxxxx & Xxxxx LLP, Delaware, New York and Texas counsel for the Loan Parties and (ii) Xxxxx Xxxxxx Xxxxxxxx LLP, Alaska and Washington counsel for the Loan Parties, in each case in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests counsel to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of each Loan Party, dated the Closing Date, substantially in the form of Exhibit E with appropriate insertions, or otherwise in form and substance reasonably satisfactory to the Administrative Agent, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section 4.01.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) copies of resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of Loan Documents to which it is a party, certified as of the Closing Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received all fees and other amounts previously agreed in writing by the Joint Lead Arrangers and the Borrower to be due and payable on or prior to the Closing Date, including, to the extent invoiced at least three (3) Business Days prior to the Closing Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party under any Loan Document.
(f) The Collateral and Guarantee Requirement (other than in accordance with Section 6.14) shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate dated the Closing Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby; provided that if, notwithstanding the use by the Borrower of commercially reasonable efforts without undue burden or expense to cause the Collateral and Guarantee Requirement to be satisfied on the Closing Date, the requirements thereof (other than (a) the execution and delivery of the ABL Guarantee Agreement and the Collateral Agreement by the Loan Parties, (b) creation of and perfection of security interests in the Equity Interests of wholly-owned Domestic Subsidiaries that are Restricted Subsidiaries of the Borrower (provided that such Equity Interests are not Excluded Assets or owned or held by an Excluded Subsidiary), to the extent received from the Acquired Company and (c) delivery of Uniform Commercial Code financing statements with respect to perfection of security interests in the assets of the Loan Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code) are not satisfied as of the Closing Date, the satisfaction of such requirements shall not be a condition to the availability of the initial Loans on the Closing Date (but shall be required to be satisfied as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.14 or such later date as the Administrative Agent may otherwise reasonably agree).
(g) (g) Since April 13, 2015, there shall not have occurred a Material Adverse Effect (as defined in the Acquisition Agreement) with respect to the Acquired Companies.
(h) (h) The Joint Lead Arrangers shall have received the Audited Financial Statements, the Unaudited Financial Statements and the Pro Forma Financial Statements.
(i) (i) (A) The Specified Acquisition Agreement Representations shall be true and correct in all material respects and as of the Closing Date and (B) the Specified Representations shall be true and correct in all material respects on and as of the Closing Date.
(j) (j) The Acquisition shall have been consummated, or substantially simultaneously with the initial funding of Loans on the Closing Date, shall be consummated, in all material respects in accordance with the terms of the Acquisition Agreement, without giving effect to any modifications, amendments, consents or waivers by the Acquired Company to or of the Acquisition Agreement that are materially adverse to the Joint Lead Arrangers without the consent of each Joint Lead Arranger (such consent not to be unreasonably withheld, delayed or conditioned and provided that the Joint Lead Arrangers shall be deemed to have consented to such amendment, waiver or consent unless they shall object thereto within 48 hours after notice of such proposed amendment, waiver or consent) (it being understood that (x) any substantive modification, amendment, consent or waiver to the definition of Material Adverse Effect (as defined in the Acquisition Agreement as in effect on April 13, 2015) shall be deemed to be materially adverse to the interest of the Lenders and the Joint Lead Arrangers, (y) any increase in the purchase price of the Acquisition will be deemed not to be materially adverse to the Joint Lead Arrangers so long as such increase is funded by an increase in the Equity Issuance, and (z) any reduction in the purchase price of the Acquisition shall not be deemed to be material and adverse to the interests of the Joint Lead Arrangers but shall have been allocated to reduce the Term Loans and the Unsecured Notes pro rata).
(k) (k) The Refinancing shall have been consummated, or substantially concurrently with the initial funding of Loans on the Closing Date, shall be consummated.
(l) (l) The Lenders shall have received a certificate from the chief financial officer of the Borrower certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions, substantially the form of Exhibit N.
(m) (m) The Administrative Agent and the Joint Lead Arrangers shall have received, at least three (3) Business Days prior to the Closing Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least ten (10) Business Days prior to the Closing Date by the Administrative Agent or the Joint Lead Arrangers that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
(n) (n) The Equity Issuance shall have been consummated, or substantially concurrently with, or prior to, the initial funding of Loans on the Closing Date, shall be consummated.
(o) (o) The Loan Documents shall have been executed and delivered by all of the Term Loan Parties stated to be party thereto and the Borrower shall have received no less than (x) $700,000,000 of gross proceeds from the issuance of the Unsecured Notes in accordance with the Unsecured Notes Indenture and (y) $600,000,000 aggregate principal amount of loans under the Term Loan Facility.
(p) (p) The Borrower shall have delivered to the Administrative Agent a Borrowing Base Certificate dated as of July 29, 2015.
(q) (q) The Grantor Intercreditor Agreement Joinder to the ABL/Bond Intercreditor Agreement shall have been duly executed and delivered by the Acquired Company and each other Loan Party that is a Subsidiary thereof. Notwithstanding the foregoing, other than in the proviso in Section 4.01(f), the obligations of the Lenders to make Loans and the LC Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions shall have been satisfied (or waived pursuant to Section 9.02) at or prior to 5:00 p.m., New York City time, on the Closing Date (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time). For purposes of determining whether the conditions set forth in this Section 4.01 have been satisfied, by releasing its signature page hereto or to an Assignment and Agreement the Administrative Agent and each Lender party hereto shall be deemed to have consented to, approved, accepted or be satisfied with each document or other matter required hereunder to be consented to or approved by, or acceptable or satisfactory to, the Administrative Agent or such Lender, as the case may be.
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Conditions Precedent at Closing Date. The obligation of the Lenders to make Loans, and of any LC Issuer to issue Letters of Credit, on the Closing Date is subject to the satisfaction (or waiver thereof in accordance with Section 11.12) of each of the following conditions on or prior to the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) otherwise, written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed counterpart of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a written opinion (addressed to the Administrative Agent, the Lenders and the LC Issuers and dated the Closing Date) of each of (i) Xxxxxxxx & Xxxxx LLP, Delaware, New York and Texas counsel for the Loan Parties and (ii) Xxxxx Xxxxxx Xxxxxxxx LLP, Alaska and Washington counsel for the Loan Parties, in each case in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests counsel to deliver such opinions.
(c) The Administrative Agent shall have received a certificate of each Loan Party, dated the Closing Date, substantially in the form of Exhibit E with appropriate insertions, or otherwise in form and substance reasonably satisfactory to the Administrative Agent, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in paragraph (d) of this Section 4.01.
(d) The Administrative Agent shall have received a copy of (i) each Organizational Document of each Loan Party certified, to the extent applicable, as of a recent date by the applicable Governmental Authority, (ii) signature and incumbency certificates of the Responsible Officers of each Loan Party executing the Loan Documents to which it is a party, (iii) copies of resolutions of the board of directors and/or similar governing bodies of each Loan Party approving and authorizing the execution, delivery and performance of Loan Documents to which it is a party, certified as of the Closing Date by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment and (iv) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation.
(e) The Administrative Agent shall have received all fees and other amounts previously agreed in writing by the Joint Lead Arrangers and the Borrower to be due and payable on or prior to the Closing Date, including, to the extent invoiced at least three (3) Business Days prior to the Closing Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party under any Loan Document.
(f) The Collateral and Guarantee Requirement (other than in accordance with Section 6.14) shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate dated the Closing Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby; provided that if, notwithstanding the use by the Borrower of commercially reasonable efforts without undue burden or expense to cause the Collateral and Guarantee Requirement to be satisfied on the Closing Date, the requirements thereof (other than (a) the execution and delivery of the ABL Guarantee Agreement and the Collateral Agreement by the Loan Parties, (b) creation of and perfection of security interests in the Equity Interests of wholly-owned Domestic Subsidiaries that are Restricted Subsidiaries of the Borrower (provided that such Equity Interests are not Excluded Assets or owned or held by an Excluded Subsidiary), to the extent received from the Acquired Company and (c) delivery of Uniform Commercial Code financing statements with respect to perfection of security interests in the assets of the Loan Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code) are not satisfied as of the Closing Date, the satisfaction of such requirements shall not be a condition to the availability of the initial Loans on the Closing Date (but shall be required to be satisfied as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.14 or such later date as the Administrative Agent may otherwise reasonably agree).
(g) Since April 13, 2015, there shall not have occurred a Material Adverse Effect (as defined in the Acquisition Agreement) with respect to the Acquired Companies.
(h) The Joint Lead Arrangers shall have received the Audited Financial Statements, the Unaudited Financial Statements and the Pro Forma Financial Statements.
(i) (A) The Specified Acquisition Agreement Representations shall be true and correct in all material respects and as of the Closing Date and (B) the Specified Representations shall be true and correct in all material respects on and as of the Closing Date.
(j) The Acquisition shall have been consummated, or substantially simultaneously with the initial funding of Loans on the Closing Date, shall be consummated, in all material respects in accordance with the terms of the Acquisition Agreement, without giving effect to any modifications, amendments, consents or waivers by the Acquired Company to or of the Acquisition Agreement that are materially adverse to the Joint Lead Arrangers without the consent of each Joint Lead Arranger (such consent not to be unreasonably withheld, delayed or conditioned and provided that the Joint Lead Arrangers shall be deemed to have consented to such amendment, waiver or consent unless they shall object thereto within 48 hours after notice of such proposed amendment, waiver or consent) (it being understood that (x) any substantive modification, amendment, consent or waiver to the definition of Material Adverse Effect (as defined in the Acquisition Agreement as in effect on April 13, 2015) shall be deemed to be materially adverse to the interest of the Lenders and the Joint Lead Arrangers, (y) any increase in the purchase price of the Acquisition will be deemed not to be materially adverse to the Joint Lead Arrangers so long as such increase is funded by an increase in the Equity Issuance, and (z) any reduction in the purchase price of the Acquisition shall not be deemed to be material and adverse to the interests of the Joint Lead Arrangers but shall have been allocated to reduce the Term Loans and the Unsecured Notes pro rata).
(k) The Refinancing shall have been consummated, or substantially concurrently with the initial funding of Loans on the Closing Date, shall be consummated.
(l) The Lenders shall have received a certificate from the chief financial officer of the Borrower certifying as to the solvency of the Borrower and its Subsidiaries on a consolidated basis after giving effect to the Transactions, substantially the form of Exhibit N.
(m) The Administrative Agent and the Joint Lead Arrangers shall have received, at least three (3) Business Days prior to the Closing Date, all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least ten (10) Business Days prior to the Closing Date by the Administrative Agent or the Joint Lead Arrangers that they shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act.
(n) The Equity Issuance shall have been consummated, or substantially concurrently with, or prior to, the initial funding of Loans on the Closing Date, shall be consummated.
(o) The Loan Documents shall have been executed and delivered by all of the Term Loan Parties stated to be party thereto and the Borrower shall have received no less than (x) $700,000,000 of gross proceeds from the issuance of the Unsecured Notes in accordance with the Unsecured Notes Indenture and (y) $600,000,000 aggregate principal amount of loans under the Term Loan Facility.
(p) The Borrower shall have delivered to the Administrative Agent a Borrowing Base Certificate dated as of July 29, 2015.
(q) The Grantor Intercreditor Agreement Joinder to the ABL/Bond Intercreditor Agreement shall have been duly executed and delivered by the Acquired Company and each other Loan Party that is a Subsidiary thereof. Notwithstanding the foregoing, other than in the proviso in Section 4.01(f), the obligations of the Lenders to make Loans and the LC Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions shall have been satisfied (or waived pursuant to Section 9.02) at or prior to 5:00 p.m., New York City time, on the Closing Date (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time). For purposes of determining whether the conditions set forth in this Section 4.01 have been satisfied, by releasing its signature page hereto or to an Assignment and Agreement the Administrative Agent and each Lender party hereto shall be deemed to have consented to, approved, accepted or be satisfied with each document or other matter required hereunder to be consented to or approved by, or acceptable or satisfactory to, the Administrative Agent or such Lender, as the case may be.
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