Conditions Precedent to Credit Extensions. Conditions of Initial Credit Extension. The obligation of the 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 or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party (if applicable): (i) executed counterparts of this Agreement; (ii) a Note executed by each applicable 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 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 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; (iv) copies of each Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect; (v) a favorable opinion of (x) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser Xxxxxx Casgrain LLP and XxXxxxx Xxxxxx LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents; (vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any 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, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture; (vii) intentionally omitted; (viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect; (ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents 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 (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released; (x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement); (xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties; (xii) the Intercreditor Agreement; (A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents; (xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral 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 are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and (xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereof. (b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000. (c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent. (d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009. (e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices. (f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000. (g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents. (h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained. (i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full. (j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger). (k) The Agents 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 Patriot Act. (l) Since June 8, 2009, 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) intentionally omitted. (n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders 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 9.02, for purposes of determining compliance with the conditions specified in this Section 0, each Lender (other than an Agent or the Canadian Agent) 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. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent: (o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, 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 respects as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0. (p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof. (q) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 2 contracts
Samples: Credit Agreement (Quiksilver Inc), Credit Agreement (Quiksilver Inc)
Conditions Precedent to Credit Extensions. 4.01 Conditions of Initial Effectiveness of this Agreement and Credit Extension. The effectiveness of this Agreement and the obligation of the L/C Issuer and each Lender to make its initial any Credit Extension hereunder is on the Closing Date 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 originals, telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” “via e-mail”) (followed promptly by originals) unless otherwise specified, 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 Agent:
(i) counterparts of this Agreement each properly executed by a Responsible Officer of the signing Loan Party (if applicable):
(i) executed counterparts of this Agreementand the Lenders sufficient in number for distribution to the Agent, each Lender and the Lead Borrower;
(ii) a Note executed by each applicable Borrower 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 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 become a party and (B) the identity, authority and capacity of each Responsible Officer thereof DB1/ 97390493.6 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 become a party;
(iv) copies of each Loan Party’s certificate or articles of incorporation Organization Documents and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificatesdocuments and certifications as the 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 the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) SkaddenXxxxxxxxx Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary such matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser Xxxxxx Casgrain LLP and XxXxxxx Xxxxxx LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsmay reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, Borrower certifying (A) that the conditions specified in Sections ARTICLE IV(o) 4.01 and (p) 4.02 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) 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 any 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, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ixviii) a payoff letter from the agent Term Loan Agent for the lenders under the Existing Credit Agreement reasonably Term Loan Agreement, satisfactory in form and substance to the Agents Agent, evidencing that the Existing Credit Term Loan Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder have been or concurrently with the Closing Date are being paid in full (except to the extent expressly set forth therein)full, and all Liens securing obligations under the Existing Credit Term Loan Agreement have been, been or concurrently with the Closing Date are being, being released;
(xix) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement)thereunder, together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement)Parties;
(xix) all other Loan Documents set forth on Schedule 4.01(a)(xi) heretoDocuments, each duly executed by the applicable Loan Parties;
(xiixi) appraisal based on forced liquidation value by a third party appraiser acceptable to the Intercreditor AgreementAgent of all Eligible Trade Names of the Borrowers;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xivxii) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents Agent (in each case dated as of a date reasonably satisfactory to the Co-Collateral AgentsAgent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases satisfactory to the Agent are being tendered DB1/ 97390493.6 concurrently with the initial such extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made; and;
(xvxiii) (A) all UCC financing statements documents and PPSA instruments, including Uniform Commercial Code financing statements, required by Law law or reasonably requested by the Agents or the Canadian Agent, as applicable, Agent to be filed, registered or recorded to create, create or perfect or protect the first priority Liens intended to be created under the Loan DocumentsDocuments and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Agent, (B) the Credit Card Notifications, and Account Control Agreements required pursuant to Section 6.12 hereof shall have been obtained, and (BC) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior control agreements with respect to the Closing Date pursuant to Section 6.07 hereofLoan Parties’ securities and investment accounts have been obtained; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing DateLoans, (ii) the payment of all fees and other amounts due any charges to the Credit Parties by Loan Account made in connection with the Borrowers on the Closing Date as required under the Loan Documents, credit facility contemplated hereby and (iii) all Letters of Credit to be issued on at, or immediately subsequent to, the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000twenty-five percent (25%) of the Revolving Loan Cap.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30May 5, 20092018, and executed by a Responsible Officer of the Lead Borrower or the ParentBorrower.
(d) The Co-Collateral Agents Agent shall be reasonably satisfied with that any financial statements delivered to it and the results Lenders fairly present the business and financial condition of the inventory appraisal conducted by Great American Group dated April, 2009Loan Parties and that there has been no Material Adverse Effect since the date of the Audited Financial Statements.
(e) The Administrative Agent and the Lenders shall have received, received and be satisfied with (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (iix) a detailed forecast financial projections and business assumptions on a quarterly basis for the one year period commencing with following the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010Closing Date, which shall include an Availability modelmodel (prepared on a twelve month basis), Americas Consolidated income statement, balance sheet, and statement of cash flow, by monthand (y) a detailed forecast on an annual basis for each of the three Fiscal Years thereafter, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow, in each case prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practicespractices and (ii) such other information (financial or otherwise) reasonably requested by the Agent.
(f) The Lead Borrower There shall not be pending any litigation or any Subsidiary shall other proceeding, the result of which, either individually or in the aggregate, could reasonably be expected to have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000Material Adverse Effect.
(g) The Agents There shall not have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies occurred any default of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agentsany Material Contract of any Loan Party.
(h) All necessary consents and approvals to The consummation of the transactions contemplated hereby shall have been obtainednot violate any Law or any Organization Document.
(i) All fees required to be paid by to the Borrowers to any of the Agents Agent or the Arrangers Arranger on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.. DB1/ 97390493.6
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings Closing Date (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arrangerthe Agent).
(k) The Agents Upon the reasonable request of the Agent or any Lender made at least ten (10) days prior to the Closing Date, the Lead Borrower shall have received all provided to the Agent and such Lender the documentation and other information required by regulatory authorities under so requested in connection with applicable “know your customer”, Anti-Corruption Laws and Anti-Money Laundering, including the Act, in each case at least five (5) days prior to the Closing Date. At least five (5) days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” and anti-money laundering rules and regulations including, without limitation, under the Patriot ActBeneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower.
(l) Since June 8, 2009, no 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) intentionally omitted.
(n) The Closing Date There shall not have occurred on any disruption or before July 31material adverse change in the United States financial or capital markets in general that has had, 2009. The Administrative Agent shall notify in the Lead Borrower and the Lenders reasonable opinion of the Closing DateAgent, and such notice shall be conclusive and binding a material adverse effect on the Loan Partiesmarket for loan syndications or adversely affecting the syndication of the Loans. Without limiting the generality of the provisions of Section 9.029.04, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) 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. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, 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 respects as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Conditions Precedent to Credit Extensions. (a) Conditions of Initial Credit Extension. The obligation of the 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 originals, telecopies or other electronic image scan transmission (e.g., “pdf” or “tiftif ” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Restatement Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Restatement Date) and each in form and substance satisfactory to the Administrative Agent:
(i1) executed counterparts of this AgreementAgreement sufficient in number for distribution to the Administrative Agent, each Lender and the Lead Borrower;
(ii2) a Note executed by each applicable Borrower the Borrowers in favor of each Lender requesting a Note;
(iii3) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing as the Administrative Agent may
(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 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 become a party;
(iv4) copies of each Loan Party’s certificate 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 articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v5) a favorable opinion of (x) Skadden, Arps, Slate, Xxxxxxx & Xxxx each of Bxxxxxx Xxxxx LLP, special counsel to the Domestic Loan Parties, each addressed to the Administrative Agent Agents, the L/C Issuer and each Domestic Lender, as to customary such matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser Xxxxxx Casgrain LLP and XxXxxxx Xxxxxx LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsmay reasonably request;
(vi6) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, Borrower certifying (A) that the conditions specified in Sections ARTICLE IV(o4(b)(i) and (pii) 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) to the Solvency of the Loan Parties as of the 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 any 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, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii7) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, Agents required under the Loan Documents have been obtained and are in effect;
(ix) 8) a payoff letter from the agent for the lenders under the Existing Credit Term Loan Agreement reasonably satisfactory in form and substance to the Agents Administrative Agent evidencing that the Existing Credit Term Loan Agreement has been or concurrently with the Closing Restatement Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein)full, and all Liens securing obligations under the Existing Credit Term Loan Agreement have been, been or concurrently with the Closing Restatement Date are being, being released;
(x9) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement)thereunder, together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement)Parties;
(xi10) all other Loan Documents set forth on Schedule 4.01(a)(xi) heretoDocuments, each duly executed by the applicable Loan Parties;
(xii11) the Intercreditor Agreement;
(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 reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv12) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents Agent (in each case dated as of a date reasonably satisfactory to the Co-Collateral AgentsAgent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases satisfactory to the Collateral Agent are being tendered concurrently with the initial such extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents Agent for the delivery of such termination statements and releases, satisfactions and discharges releases have been made; and;
(xv13) (A) all UCC financing statements documents and PPSA instruments, including Uniform Commercial Code financing statements, required by Law law or reasonably requested by the Agents or the Canadian Agent, as applicable, Collateral Agent to be filed, registered or recorded to create, create or perfect or protect the first priority Liens intended to be created under the Loan DocumentsDocuments and all such documents and instruments shall have been so filed, and registered or recorded to the satisfaction of the Collateral Agent, (B) the DDA Notifications, Credit Card Notifications Notifications, and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 6(m) hereof, (C) control agreements with respect to the Loan Parties’ securities and investment accounts, and (D) Collateral Access Agreements as required by the Collateral Agent; and
(14) such other assurances, certificates, documents, consents or opinions as the Agents reasonably may require.
(bii) After giving effect to (i) the first funding under the Loans (if any) on the Closing DateLoans, (ii) the payment of all fees and other amounts due any charges to the Credit Parties by Loan Account made in connection with the Borrowers on establishment of the Closing Date as required under the Loan Documents, credit facility contemplated hereby and (iii) all Letters of Credit to be issued on the Closing Date(or deemed issued) at, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Dateor immediately subsequent to, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of salessuch establishment, Domestic Revolving Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,00050,000,000.
(ciii) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Restatement Date, relating to the month period ended on June 30as of May 19, 20092018, and executed by a Responsible Officer of the Lead Borrower or the ParentBorrower.
(div) The Co-Collateral Agents Administrative Agent shall be reasonably satisfied with that any financial statements delivered to it fairly present the results business and financial condition of the inventory appraisal conducted by Great American Group dated April, 2009Loan Parties and that there has been no Material Adverse Effect since the date of the most recent financial information delivered to the Administrative Agent.
(ev) The Administrative Agent shall have received, received and be satisfied with (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with on the Fiscal Quarter ending July 31, 2009 Restatement Date and ending with the end of the Fiscal Quarter ending October 31April 30, 20102019, which shall include an a Revolving Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practicespractices and (b) such other information (financial or otherwise) reasonably requested by the Administrative Agent.
(fvi) The Lead Borrower There shall not be pending any litigation or any Subsidiary shall other proceeding, the result of which, either individually or in the aggregate, could reasonably be expected to have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000Material Adverse Effect.
(gvii) The Agents There shall not have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies occurred any default of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agentsany Material Contract of any Loan Party.
(hviii) All necessary consents and approvals to The consummation of the transactions contemplated hereby shall have been obtainednot violate any Applicable Law or any Organization Document.
(iix) All fees required to be paid by to the Borrowers to any of Administrative Agent, the Agents or the Arrangers on or before the Closing Date shall have been paid in full, Term Loan Agent and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Restatement Date shall have been paid in full.
(jx) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents Administrative Agent and Arrangers the Term Loan Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Restatement Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ the Administrative Agent’s or the Term Loan Agent’s, as applicable, reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it such Person through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrowers, the Administrative Agent and any Agent or Arrangerthe Term Loan Agent).
(kxi) The Agents Administrative Agent and the Lenders shall have received all an executed Certificate of Beneficial Ownership with respect to each Borrower and such other documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations includingregulations, including without limitation, limitation the Patriot Act, in each case, the results of which are reasonably satisfactory to the Administrative Agent and the Lenders.
(lxii) Since June 8, 2009, no No material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Restatement Date.
(mxiii) intentionally omitted.
(n) The Closing Date There shall not have occurred on any disruption or before July 31material adverse change in the United States financial or capital markets in general that has had, 2009. The Administrative Agent shall notify in the Lead Borrower and the Lenders reasonable opinion of the Closing DateAdministrative Agent, and such notice shall be conclusive and binding a material adverse effect on the Loan Partiesmarket for loan syndications or adversely affecting the syndication of the Loans. Without limiting the generality of the provisions of Section 9.029(d), for purposes of determining compliance with the conditions specified in this Section 04(a), each Lender (other than an Agent or the Canadian Agent) 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 Restatement Date specifying its objection thereto. .
(b) Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed LIBO Rate Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(oi) The representations and warranties of the Borrowers and each other Loan Party contained in Article V 5 or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit Extension, except (i) 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 respects as of such earlier date, (ii) to the extent that such representations and except that warranties qualified by materiality, in which case they shall be true and correct in all respects, and (iii) for purposes of this Section 04(b), the representations and warranties contained in subsections (aA), (bB) and (fe) of Section 5.01 5(e) shall be deemed to refer to the most recent statements, if any, statements furnished pursuant to clauses (ai), (bii) and (d), respectively, of Section 06(a).
(pii) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(qiii) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.
(iv) No event or circumstance which could reasonably be expected to result in a Material Adverse Effect shall have occurred.
(v) No Overadvance shall result from such Credit Extension. Each Request for a Credit Extension (other than a Committed LIBO Rate Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o4(b)(i) and (pii) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 4(b) are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed LoansLoans and the L/C Issuer to issue Letters of Credit, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with issued, which are requested by the provisions of this Agreement, Lead Borrower and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV4, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided thatprovided, however, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV 4 on any future occasion or a waiver of any rights of or the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Samples: Credit Agreement (Sportsman's Warehouse Holdings, Inc.)
Conditions Precedent to Credit Extensions. Conditions of Initial Credit ExtensionEffectiveness . The obligation effectiveness of the L/C 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 or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mailmails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Restatement Effective Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Restatement Effective Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note executed by each applicable the Borrower in favor of each Revolving Credit Lender requesting a Revolving Credit Note and a Term Note executed by the Borrower 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 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;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing and qualified to engage in business in (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdictionA) from such Loan Party’s its jurisdiction of organization and from (B) each jurisdiction where such Loan Party’s 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 (x) SkaddenXxxxxxxxx Traurig, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent Agent, each Lender and each Domestic LenderL/C Issuer, as to such customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser Xxxxxx Casgrain LLP and XxXxxxx Xxxxxx LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsmay reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying Borrower either (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any each 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 (B) 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), (b) and (d) have been satisfied, (B) that there has been no event or circumstance since December 31, 2017, that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) that no action, suit, investigation or proceeding is pending or, to the knowledge of any Loan Party, threatened in writing in any court or before any arbitrator or Governmental Authority that (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have a Material Adverse Effect;
(viii) a Solvency Certificate from the Borrower certifying that, as of the Closing Date after giving effect to the transactions contemplated herebyto occur on the Restatement Effective Date (including, without limitation, all Credit Extensions to occur on the Restatement Effective Date), the Loan Parties on Borrower and its Subsidiaries, taken as a consolidated basis whole, are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance duly completed Compliance Certificate, giving pro forma effect to the Agents evidencing that transactions to occur on or about the Existing Credit Agreement has been or concurrently with the Closing Restatement Effective Date is being terminated(including, without limitation, all obligations thereunder are being paid in full Credit Extensions to occur on the Restatement Effective Date) (except to such Compliance Certificate, the extent expressly set forth therein“Pro Forma Restatement Effective Date Compliance Certificate”), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreementfinancial statements referenced in Section 5.05(a), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreementb) and (d);
(xi) all other Loan evidence that the Prudential Note Documents set forth on Schedule 4.01(a)(xi) heretohave been, each duly executed by or substantially concurrently with the applicable Loan Parties;Restatement Effective Date are being, amended or amended and restated to conform the provisions relating to financial covenants and eligibility requirements for “pool properties” to the corresponding provisions with respect thereto in this Agreement pursuant to documentation reasonably satisfactory to the Administrative Agent; and
(xii) such other certificates, documents or consents as the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be Administrative Agent reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral 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 are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereofmay require.
(b) After giving effect to (i) the first funding Any fees required hereunder or under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit Fee Letter to be issued paid on or before the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability Restatement Effective Date shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000have been paid.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid Unless waived by the Borrowers to any of Administrative Agent, the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and invoiced (which invoice may be in summary form) prior to or on the Closing Restatement Effective Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or Arrangerthe Administrative Agent).
(kd) The Agents All accrued and unpaid interest and fees with respect to the Revolving Credit Commitments and Loans under the Existing Credit Agreement as of (and immediately prior to giving effect to) the Restatement Effective Date shall have been, or concurrently with the extensions of credit being made hereunder on the Restatement Effective Date will be, paid in full.
(e) At least ten Business Days prior to the Restatement Effective Date, the Administrative Agent and each Lender shall have received all documentation and other information required with respect to each of the Loan Parties that is required, in the Administrative Agent’s or such Lender’s judgment, by regulatory authorities under applicable “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 October 26, 2001)) and regulations including, without limitation, implemented by the Patriot US Treasury’s Financial Crimes Enforcement Network under the Bank Secrecy Act.
(l) Since June 8, 2009, 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) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan Parties. Without limiting the generality of the provisions of the last paragraph of Section 9.029.03, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Restatement Effective Date specifying its objection thereto. Conditions to all Credit ExtensionsExtensions . The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan Loans to another the other Type of Committed Loan, or a continuation of LIBO Eurodollar Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(oa) The representations and warranties of the Borrowers Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit Extension, except (i) to the extent that such representations and warranties specifically refer to an earlier datedate or period, in which case they shall be true and correct in all material respects as of such earlier datedate or for such earlier period, as applicable, (ii) that any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and except correct in all respects as of such date (but subject to the foregoing clause (i)) after giving effect to such qualification and (iii) that for purposes of this Section 04.02, the representations and warranties contained in subsections (a), ) and (b) and (f) of Section 5.01 5.05 shall be deemed to refer to the most recent statements, if any, statements furnished pursuant to clauses subsections (a), (b) and (db), respectively, of Section 06.01.
(pb) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(qc) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the an L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.
(d) The Minimum Lease Term Requirement shall be satisfied. Each Request for a Credit Extension submitted by the Borrower (other than a Committed Loan Notice requesting only a conversion of a Committed Loan Loans to another the other Type of Committed Loan or a continuation of LIBO Eurodollar Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o4.02(a), (b) and (pd) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Conditions Precedent to Credit Extensions. 4.01 Conditions of to the Initial Credit ExtensionBorrowing on the Closing Date. The obligation obligations of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is are subject to satisfaction (or waiver in accordance with Section 10.01) 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 originals, telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) .pdfs (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Parties which are party thereto, each dated the Closing Date (if applicableor, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of this AgreementAgreement bearing the signatures of each of the Borrower, the Administrative Agent and each Lender with commitments to make Loans as designated on Schedule 2.01;
(ii) a an original Note executed by each applicable the 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 and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer on behalf of such Loan Party in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) copies such documents and certifications as the Administrative Agent may reasonably require to evidence that each of each the Loan Party’s certificate or articles of incorporation and bylaws Parties (or equivalent or comparable constitutive documents other than San Diego Health Alliance with respect to any non-U.S. jurisdictiongood standing) is duly organized or formed, validly existing and a certificate in good standing in its jurisdiction of organization, including, certified copies of the Organization Documents of the Loan Parties, certificates of good standing (where applicable, or such other customary functionally equivalent certificates, to of the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse EffectParties;
(v) a favorable opinion opinions of (x) Skadden, Arps, Slate, Xxxxxxx & Xxxx Hogan Lovells US LLP, special counsel to the Domestic Loan Borrower and the Guarantors organized in Delaware, California, Massachusetts, Texas, Pennsylvania and Virginia, in each case, in form and substance reasonably satisfactory to the Administrative Agent and the Secured Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser Xxxxxx Casgrain LLP and XxXxxxx Xxxxxx LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) copies of the financial statements referred to in Section 5.05(a) and a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying Borrower (A) certifying that the conditions specified in Sections ARTICLE IV(o4.02(a) and (pb) have been satisfied, satisfied and (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any 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, (C) that, as of the Closing Date after giving effect certifying to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, condition set forth in clauses (e) and (Df) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenturebelow;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, insurance certificates or other evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in full force, including in either case evidence that the Administrative Agent, on behalf of the Lenders, is an additional insured or lender’s loss payee, as the case may be, under all endorsements insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral;
(viii) all original certificates evidencing all of the issued and outstanding shares of capital stock or other Equity Interest required to be pledged pursuant to the terms of the Security Agreement, which certificates shall be accompanied by undated stock powers duly executed in blank by each relevant pledgor in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form all notes and substance instruments required to be pledged pursuant to the Agents evidencing that terms of the Existing Credit Agreement has been or concurrently with Security Agreement, duly endorsed in blank by each relevant pledgor in favor of the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, releasedAdministrative Agent;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and certified copies of certificates evidencing any stock being pledged under Uniform Commercial Code Requests for Information or Copies (Form UCC-11) or similar search reports certified by a party acceptable to the Pledge Agreement on Administrative Agent, dated a date reasonably near (but prior to) the Closing Date (to Date, listing all effective UCC financing statements, tax liens and judgment liens since the extent required by date of such searches in connection with the Pledge Agreement)Existing Credit Agreement which name any Loan Party, as the debtor, together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties such financing statements (originals none of which are being delivered (other than financing statements filed pursuant to the US Term Loan Agent subject to terms hereof in favor of the Intercreditor AgreementAdministrative Agent) shall cover any of the Collateral, other than Liens existing on the Closing Date and permitted by Section7.01);
(xi) all acknowledgment copies of UCC financing statements (or delivery in proper form for filing) naming the Borrower and each other Loan Documents set forth on Schedule 4.01(a)(xi) heretoParty as the debtor and the Administrative Agent as the secured party, each duly executed by which such UCC financing statements have been filed, or have been delivered for filing, under the applicable Loan PartiesUCC of all jurisdictions as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the first priority security interest of the Administrative Agent pursuant to the Security Agreement;
(xii) evidence that all other action that the Intercreditor Agreement;
Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents has been taken (A) a written report regarding the results including, without limitation, receipt of a commercial finance examination of the Loan Partiesduly executed payoff letters, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which UCC-3 termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been madestatements); and
(xvxiii) (A) all UCC financing statements such other assurances, certificates, documents, consents and PPSA financing statementswaivers, required by Law estoppel certificates, or reasonably requested by opinions as the Agents Administrative Agent, the L/C Issuer, the Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have receivedreceived certification, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and receivedAdministrative Agent, or substantially simultaneously with as to the initial Credit Extension under this Agreement shall receive, gross proceeds solvency (as described in Section 5.24) of the Term Loans in Borrower, individually, and the Loan Parties, taken as a minimum amount whole from the chief financial officer of $125,000,000the Borrower.
(gc) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto Any fees and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees expenses required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid paid, including those fees and expenses set forth in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullEngagement Letter.
(jd) The Borrowers Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents Administrative Agent and the Arrangers to the extent payable by the Borrowers hereunder and invoiced at least three Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by of counsel to the Borrowers hereunder Administrative Agent and the Arrangers as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements of counsel to the Administrative Agent incurred or to be incurred by it through the closing proceedings to the extent invoiced at least three Business Days prior to or on the Closing Date (provided provided, that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or Arranger)the Administrative Agent) .
(ke) Since December 31, 2020, no changes or developments shall have occurred that either individually or in the aggregate constitutes or has had or could reasonably be expected to constitute or have a Material Adverse Effect.
(f) The Agents representations and warranties of the Borrower and each other Loan Party contained in ARTICLE V or any other Loan Document shall be true and correct in all material respects (or, if any such representation or warranty is by its terms qualified by concepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects), 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 respects (or, if any such representation or warranty is by its terms qualified by concepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects) as of such earlier date.
(g) Prior to, or substantially concurrently with, the borrowing of the Loans on the Closing Date, the Borrower shall have received (i) repaid all outstanding principal, together with all accrued and unpaid interest, in respect of Indebtedness under and as defined in the Existing Credit Agreement and permanently terminated all commitments thereunder and (ii) redeemed in full all of the Borrower’s Existing Notes.
(h) Upon the reasonable request of any Lender made at least 5 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 required by regulatory authorities under so requested in connection with applicable “know your customer” and anti-money money-laundering rules and regulations regulations, including, without limitation, the Patriot PATRIOT Act.
, in each case at least 2 days prior to the Closing Date and (ly) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred at least 5 days prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date , any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have occurred on or before July 31delivered, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Dateto each Lender that so requests, and a Beneficial Ownership Certification in relation to such notice shall be conclusive and binding on the Loan PartiesParty. Without limiting the generality of the provisions of Section 9.029.04, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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. .
4.02 Conditions to all Credit Extensions. The Other than as may be expressly set forth in Section 2.16 in connection with the establishment of any Incremental Facilities, the obligation of each Lender and the L/C Issuer to honor any Request for Credit Extension (other than a Committed Loan Notice Request for Credit Extension requesting only a conversion of a Committed Loan Loans to another Type of Committed Loanthe other Type, or a continuation of LIBO Rate Loans or BA Equivalent Eurodollar RateTerm SOFR Loans, but including, for the avoidance of doubt, any Request for Credit Extension requesting a Borrowing on the Closing Date) and of each L/C Issuer to issue each Letter of Credit is subject to the satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent:
(oa) The representations and warranties of the Borrowers Borrower and each other Loan Party contained in Article V or any other Loan Document, Document shall be true and correct in all material respects (or, in the case of if any such representation and or warranty is by its terms qualified by materialityconcepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects) on and as of the date of such Credit Extension, (i) 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 respects (or, if any such representation or warranty is by its terms qualified by concepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects) as of such earlier datedate and (ii) except that, and except that for -100- purposes of this Section 04.02, the representations and warranties contained in subsections subsection (a), (b) and (f) of Section 5.01 5.05 shall be deemed to refer to the most recent statements, if any, statements furnished pursuant to clauses subsections (a), (b) and (db), respectively, of Section 06.01.
(pb) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(qc) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan Loans to another the other Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Eurodollar RateTerm SOFR Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o4.02(a) and (p4.02(b) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Conditions Precedent to Credit Extensions. Conditions of Initial Credit ExtensionExtension . The effectiveness of this Agreement and the obligation of the 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 or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mailmails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):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:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note executed by each applicable the 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 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;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing and qualified to engage in business in (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdictionA) from such Loan Party’s its jurisdiction of organization and from (B) each jurisdiction where such Loan Party’s 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 (x) Skadden, Arps, Slate, Xxxxxxx & Xxxx McGuireWoods LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary the matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser Xxxxxx Casgrain LLP and XxXxxxx Xxxxxx LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsmay reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying Borrower either (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any each 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 (B) 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, (B) that there has been no event or circumstance since December 31, 2017 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect and (C) 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) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have a Material Adverse Effect;
(viii) a Solvency Certificate from the Borrower certifying that, 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 Parties Party is, individually and together with its Subsidiaries on a consolidated basis are basis, Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance duly completed Compliance Certificate, giving pro forma effect to the Agents evidencing that the Existing Credit Agreement has been or concurrently with transactions to occur on the Closing Date is being terminated(including, without limitation, all obligations thereunder are being paid in full (except Credit Extensions to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with occur on the Closing Date) (such Compliance Certificate, the “Pro Forma Closing Date are being, releasedCompliance Certificate”);
(x) the Security Documents set forth on Schedule 4.01(a)(xfinancial statements referenced in Section 5.05(a) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreementb), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);; and
(xi) all such other Loan Documents set forth on Schedule 4.01(a)(xi) heretoassurances, each duly executed by certificates, documents, consents or opinions as the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the ParentAdministrative Agent, the Loan Parties and their management reasonably requested by any AgentL/C Issuers, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral 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 are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding Any fees required hereunder or under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required Fee Letter to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers 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 reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and 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 payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents 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 Patriot Act.
(l) Since June 8, 2009, 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) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.029.03, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the 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. Conditions to all Credit ExtensionsExtensions . The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan Loans to another Type of Committed Loanthe other Type, or a continuation of LIBO Eurodollar Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(of) The representations and warranties of the Borrowers Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materialitySection 5.19, in all respects) on and as of the date of such Credit Extension, except (i) 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 respects as of such earlier date, (ii) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and except correct in all respects as of such date (including such earlier date set forth in the foregoing clause (i)) after giving effect to such qualification and (iii) that for purposes of this Section 04.02, the representations and warranties contained in subsections (a), ) and (b) and (f) of Section 5.01 5.05 shall be deemed to refer to the most recent statements, if any, statements furnished pursuant to clauses subsections (a), (b) and (db), respectively, of Section 06.01.
(pg) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(qh) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the an L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan Loans to another the other Type of Committed Loan or a continuation of LIBO Eurodollar Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o4.02(a) and (pb) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Conditions Precedent to Credit Extensions. 4.01 Conditions of Initial Credit Extensionto the Closing Date. The Closing Date and the obligation of the each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject only to the satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):or, in the case of certificates of governmental officials, a recent date before the Closing Date) and subject, in each case, to the terms of the last paragraph of this Section 4.01:
(i) executed counterparts of this Agreement, the Security Agreement and the Guaranty Agreement;
(ii) a Note executed by each applicable the Borrower in favor of each Lender requesting a NoteNotes;
(iii) searches of filings made under the UCC, or other applicable Law, in each case in the jurisdiction of formation of each Loan Party and each other jurisdiction reasonably deemed appropriate by the Administrative Agent;
(iv) such UCC financing statements or similar documents as are necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the Collateral in the United States;
(v) all certificates evidencing any certificated Equity Interests pledged to the Administrative Agent pursuant to the Security Agreements together with duly executed in blank, undated stock powers attached thereto;
(vi) searches of ownership of, and Liens on, United States intellectual property registrations and applications owned by each Loan Party in the appropriate United States governmental offices;
(vii) executed notices of grant of security interest in the form required by the Security Agreements as are necessary, in the Administrative Agent’s reasonable discretion, to perfect the Administrative Agent’s security interest in the United States intellectual property registrations and applications of the Loan Parties;
(viii) updated customary certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing to replace the corresponding such certificates as of the Effective Date;
(Aix) the authority of customary evidence that each Loan Party to enter into this Agreement is validly existing and the other Loan Documents to which such Loan Party is a party and (B) the identity, authority and capacity in good standing in its jurisdiction 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 partyorganization or formation;
(iv) copies of each Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special customary opinions of counsel to the Domestic Loan Parties, Parties addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser Xxxxxx Casgrain LLP and XxXxxxx Xxxxxx LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vixi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, Borrower certifying (A) that the conditions specified in Sections ARTICLE IV(o4.01(b), 4.01(f), 4.01(g) and (p4.01(h) have been satisfied, (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any 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, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents 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 (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) a Solvency Certificate signed by the Intercreditor Agreementchief financial officer of the Borrower;
(xiii) a perfection certificate in the form attached hereto as Exhibit J and signed by a Responsible Office of the Borrower; and1
(xiv) copies of (A) a written report regarding for the results Borrower (1) GAAP audited consolidated balance sheets and related consolidated statements of a commercial finance examination income, stockholders’ equity and cash flows for the three most recent fiscal years ended at least 90 days prior to the Closing Date and (2) GAAP unaudited consolidated balance sheets and related consolidated statements of income, stockholders’ equity and cash flows for each subsequent fiscal quarter (the “Interim Financial Statements”) ended at least 45 days before the Closing Date (and the corresponding period in the prior year), in each case, which financial statements shall meet the requirements of Regulation S-X under the Securities Act of 1933, as amended (subject, in the case of unaudited interim financial statements, to normal year end audit adjustments), and all other accounting rules and regulations of the Loan PartiesSEC promulgated thereunder applicable to a registration statement under such Act on Form S-3, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks for the Company (1) GAAP (except as may be indicated therein or in the notes thereto) audited consolidated balance sheets and related consolidated statements of income, stockholders’ equity and cash flows for the three most recent fiscal years ended at least 90 days prior to the Closing Date and (2) GAAP (except as may be indicated therein or in the notes thereto and except as permitted by the SEC on Form 8-K, Form 10-Q or any successor or like form under the ParentSecurities Exchange Act of 1934, as amended (the Loan Parties “Exchange Act”)) unaudited consolidated balance sheets and their management reasonably requested by any Agentrelated consolidated statements of income, stockholders’ equity and cash flows for each subsequent fiscal quarter ended at least 45 days before the Closing Date (and the corresponding period in the prior year), in each case, which financial statements shall meet the requirements of Regulation S-X under the Securities Act of 1933, as amended (subject, in the case with results reasonably satisfactory of unaudited interim financial statements, to normal, recurring year end audit adjustments and except, in the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Partiesunaudited interim financial statements, except for Permitted Encumbrances as permitted by Rule 10-01 of Regulation S-X under the Exchange Act), and Liens for which termination all other accounting rules and regulations of the SEC promulgated thereunder applicable to a registration statement under such Act on Form S-3; provided, however that the filing of the required financial statements on Form 10-K or Form 10-Q within the time periods required thereby will satisfy the requirements under clauses (A) and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made(B) above; and
(xv) pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Borrower as of end of the most recent fiscal quarter period for which financial statements have been delivered pursuant to paragraph (Axiv)(A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documentsabove, and for the most recent fiscal year and each subsequent fiscal quarter period for which financial statements have been delivered pursuant to paragraph (Bxiv)(A) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior above, in each case prepared after giving effect to the Closing Date pursuant to Section 6.07 hereofTransactions 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 the income statement).
(b) After giving effect to (i) the first funding under the Loans (if any) on Substantially concurrently with the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Borrower’s Existing Credit Agreement on the Closing Dateshall have been repaid in full (other than contingent indemnification obligations for which no claim or demand has yet been made), and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course all commitments thereunder shall have been terminated. 1 NTD: To be deleted upon receipt of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000perfection certificate.
(c) The Administrative Agent and the Canadian Agent Lenders shall have received a Borrowing Base Certificate dated the Closing Date, relating at least three (3) Business Days prior to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations includingregulations, without limitationincluding the PATRIOT Act, to the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party extent requested by the Administrative Agent or any Credit Party shall have occurred such Lender in writing to the Borrower at least ten (10) Business Days prior to the Closing Date.
(md) intentionally omittedAt least three (3) Business Days prior to the Closing Date, if the Borrower 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 in relation to the Borrower.
(ne) The Arrangers, the Administrative Agent and the Lenders shall have received all fees and invoiced expenses required to be paid on or prior to the Closing Date pursuant to the Fee Letters or hereunder concurrently with the initial Credit Extension hereunder; provided that if invoices for such expenses are not received at least two (2) Business Days prior to the Closing Date, then the payment thereof shall not be a condition to the Closing Date.
(f) The Finisar Acquisition shall be consummated substantially concurrently with the initial Credit Extension hereunder in accordance with the Merger Agreement in all material respects, and the Merger Agreement shall not have been amended or modified in any respect that is materially adverse to the Lenders or the Arrangers, without the Administrative Agent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), and no condition shall have occurred been waived or consent granted, in each case, in any respect that is materially adverse to the Lenders or the Arrangers, without each Arranger’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood and agreed that (i) any decrease in the purchase price of the Acquisition shall be deemed not materially adverse to the Lenders and the Arrangers to the extent such decrease is less than 15% of the initial purchase price and applied to reduce the Term Facilities on a dollar-for-dollar (and pro rata) basis, (ii) any increase in the purchase price of the Finisar Acquisition that is not funded with equity or before July 31cash on hand shall be deemed to be materially adverse to the Lenders and the Arrangers and (iii) any amendment, 2009modification, waiver or consent with respect to the definition of “Company Material Adverse Effect” in the Merger Agreement shall be deemed to be materially adverse to the Lenders and the Arrangers).
(g) Since November 8, 2018, there shall not have been any “Change” (as defined in the Merger Agreement as in effect on November 8, 2018) that, individually or in the aggregate has had or would reasonably be expected to have a Company Material Adverse Effect (as defined in the Merger Agreement as in effect on November 8, 2018) that is continuing.
(h) The Specified Merger Agreement Representations shall be true and correct in all material respects. The Specified Representations shall be true and correct in all material respects as of the Closing Date (except in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be); provided that to the extent any representation and warranty is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such date.
(i) The Administrative Agent shall notify have received Schedules 1.01, 5.13, 5.21, 6.19, 7.01, 7.02, 7.03, 7.04, 7.05, 7.08, 7.09, 10.02 and 10.06 in form and substance reasonably satisfactory to the Lead Borrower Administrative Agent and the Lenders, provided that the Administrative Agent and Lenders agree that such schedules shall be deemed to be satisfactory if such updated Schedules (i) do not differ from the corresponding Schedules attached hereto as of the Closing Date, Effective Date in a manner that is material and adverse to the Lenders or (ii) are otherwise satisfactory to the Required Lenders (it being understood and agreed that any such notice items disclosed in the Borrower’s Form 10-K or 10-Q or the Company’s Form 10-K or 10-Q with the SEC prior to the Effective Date shall be conclusive and binding on deemed satisfactory to the Loan PartiesRequired Lenders).
(j) The Effective Date shall have occurred. Without limiting the generality of the provisions of the last paragraph of Section 9.029.03, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) It is understood and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, 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 respects as of such earlier date, and except agreed that for purposes of this Section 0the availability of the Facilities on the Closing Date, to the extent any security interest in the intended Collateral (other than any Collateral the security interest in which may be perfected by the filing of a UCC financing statement, the representations filing of short-form security agreements with the United States Patent and warranties contained Trademark Office or the United States Copyright Office or the delivery of stock certificates evidencing equity interests in subsections (a), x) the Borrower’s U.S. Subsidiaries (bother than the Company and the Company’s U.S. Subsidiaries) and (fy) the Company, and to the extent provided by the Company on the Closing Date after use of commercially reasonable efforts, any of the Company’s U.S. Subsidiaries) is not provided on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so, the provision of such perfected security interest(s) shall not constitute a condition precedent under this Section 5.01 4.01 but shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made delivered no later than ninety (90) after the Closing Date (or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are such later date agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed ) pursuant to arrangements to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to complymutually agreed.
Appears in 1 contract
Samples: Credit Agreement (Ii-Vi Inc)
Conditions Precedent to Credit Extensions. 4.01 Conditions of to the Initial Credit ExtensionBorrowing on the Closing Date. The obligation obligations of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is are subject to satisfaction (or waiver in accordance with Section 10.01) 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 originals, telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) .pdfs (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Parties which are party thereto, each dated the Closing Date (if applicableor, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of this AgreementAgreement bearing the signatures of each of the Borrower, the Administrative Agent and each Lender with commitments to make Loans as designated on Schedule 2.01;
(ii) a an original Note executed by each applicable the 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 and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer on behalf of such Loan Party in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each of the Loan Parties is duly organized or formed, validly existing and in good standing in its jurisdiction of organization, including, certified copies of each the Organization Documents of the Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate Parties, certificates of good standing (where applicable, or such other customary functionally equivalent certificates, to of the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse EffectParties;
(v) a favorable opinion opinions of (x) Skadden, Arps, Slate, Xxxxxxx & Xxxx Xxxxx Lovells US LLP, special counsel to the Domestic Loan Borrower and the Guarantors organized in Delaware, California, Massachusetts, Texas, Pennsylvania and Virginia, in each case, in form and substance reasonably satisfactory to the Administrative Agent and the Secured Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser Xxxxxx Casgrain LLP and XxXxxxx Xxxxxx LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) copies of the financial statements referred to in Section 5.05(a) and a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying Borrower (A) certifying that the conditions specified in Sections ARTICLE IV(o4.02(a) and (pb) have been satisfied, satisfied and (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any 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, (C) that, as of the Closing Date after giving effect certifying to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, condition set forth in clauses (e) and (Df) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenturebelow;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, insurance certificates or other evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in full force, including in either case evidence that the Administrative Agent, on behalf of the Lenders, is an additional insured or lender’s loss payee, as the case may be, under all endorsements insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral;
(viii) all original certificates evidencing all of the issued and outstanding shares of capital stock or other Equity Interest required to be pledged pursuant to the terms of the Security Agreement, which certificates shall be accompanied by undated stock powers duly executed in blank by each relevant pledgor in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form all notes and substance instruments required to be pledged pursuant to the Agents evidencing that terms of the Existing Credit Agreement has been or concurrently with Security Agreement, duly endorsed in blank by each relevant pledgor in favor of the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, releasedAdministrative Agent;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and certified copies of certificates evidencing any stock being pledged under Uniform Commercial Code Requests for Information or Copies (Form UCC-11) or similar search reports certified by a party acceptable to the Pledge Agreement on Administrative Agent, dated a date reasonably near (but prior to) the Closing Date (to Date, listing all effective UCC financing statements, tax liens and judgment liens since the extent required by date of such searches in connection with the Pledge Agreement)Existing Credit Agreement which name any Loan Party, as the debtor, together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties such financing statements (originals none of which are being delivered (other than financing statements filed pursuant to the US Term Loan Agent subject to terms hereof in favor of the Intercreditor AgreementAdministrative Agent) shall cover any of the Collateral, other than Liens existing on the Closing Date and permitted by Section7.01);
(xi) all acknowledgment copies of UCC financing statements (or delivery in proper form for filing) naming the Borrower and each other Loan Documents set forth on Schedule 4.01(a)(xi) heretoParty as the debtor and the Administrative Agent as the secured party, each duly executed by which such UCC financing statements have been filed, or have been delivered for filing, under the applicable Loan PartiesUCC of all jurisdictions as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the first priority security interest of the Administrative Agent pursuant to the Security Agreement;
(xii) evidence that all other action that the Intercreditor Agreement;
Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents has been taken (A) a written report regarding the results including, without limitation, receipt of a commercial finance examination of the Loan Partiesduly executed payoff letters, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which UCC-3 termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been madestatements); and
(xvxiii) (A) all UCC financing statements such other assurances, certificates, documents, consents and PPSA financing statementswaivers, required by Law estoppel certificates, or reasonably requested by opinions as the Agents Administrative Agent, the L/C Issuer, the Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have receivedreceived certification, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and receivedAdministrative Agent, or substantially simultaneously with as to the initial Credit Extension under this Agreement shall receive, gross proceeds solvency (as described in Section 5.24) of the Term Loans in Borrower, individually, and the Loan Parties, taken as a minimum amount whole from the chief financial officer of $125,000,000the Borrower.
(gc) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto Any fees and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees expenses required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid paid, including those fees and expenses set forth in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullEngagement Letter.
(jd) The Borrowers Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents Administrative Agent and the Arrangers to the extent payable by the Borrowers hereunder and invoiced at least three Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by of counsel to the Borrowers hereunder Administrative Agent and the Arrangers as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements of counsel to the Administrative Agent incurred or to be incurred by it through the closing proceedings to the extent invoiced at least three Business Days prior to or on the Closing Date (provided provided, that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or Arrangerthe Administrative Agent).
(ke) Since December 31, 2020, no changes or developments shall have occurred that either individually or in the aggregate constitutes or has had or could reasonably be expected to constitute or have a Material Adverse Effect.
(f) The Agents representations and warranties of the Borrower and each other Loan Party contained in ARTICLE V or any other Loan Document shall be true and correct in all material respects (or, if any such representation or warranty is by its terms qualified by concepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects), 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 respects (or, if any such representation or warranty is by its terms qualified by concepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects) as of such earlier date.
(g) Prior to, or substantially concurrently with, the borrowing of the Loans on the Closing Date, the Borrower shall have received (i) repaid all outstanding principal, together with all accrued and unpaid interest, in respect of Indebtedness under and as defined in the Existing Credit Agreement and permanently terminated all commitments thereunder and (ii) redeemed in full all of the Borrower’s Existing Notes.
(h) Upon the reasonable request of any Lender made at least 5 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 required by regulatory authorities under so requested in connection with applicable “know your customer” and anti-money money-laundering rules and regulations regulations, including, without limitation, the Patriot PATRIOT Act.
, in each case at least 2 days prior to the Closing Date and (ly) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred at least 5 days prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date , any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have occurred on or before July 31delivered, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Dateto each Lender that so requests, and a Beneficial Ownership Certification in relation to such notice shall be conclusive and binding on the Loan PartiesParty. Without limiting the generality of the provisions of Section 9.029.04, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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. .
4.02 Conditions to all Credit Extensions. The Other than as may be expressly set forth in Section 2.16 in connection with the establishment of any Incremental Facilities, the obligation of each Lender and the L/C Issuer to honor any Request for Credit Extension (other than a Committed Loan Notice Request for Credit Extension requesting only a conversion of a Committed Loan Loans to another Type of Committed Loanthe other Type, or a continuation of LIBO Eurodollar Rate Loans or BA Equivalent Loans, but including, for the avoidance of doubt, any Request for Credit Extension requesting a Borrowing on the Closing Date) and of each L/C Issuer to issue each Letter of Credit is subject to the satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent:
(oa) The representations and warranties of the Borrowers Borrower and each other Loan Party contained in Article V or any other Loan Document, Document shall be true and correct in all material respects (or, in the case of if any such representation and or warranty is by its terms qualified by materialityconcepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects) on and as of the date of such Credit Extension, (i) 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 respects (or, if any such representation or warranty is by its terms qualified by concepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects) as of such earlier datedate and (ii) except that, and except that for purposes of this Section 04.02, the representations and warranties contained in subsections subsection (a), (b) and (f) of Section 5.01 5.05 shall be deemed to refer to the most recent statements, if any, statements furnished pursuant to clauses subsections (a), (b) and (db), respectively, of Section 06.01.
(pb) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(qc) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan Loans to another the other Type of Committed Loan or a continuation of LIBO Eurodollar Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o4.02(a) and (p4.02(b) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Conditions Precedent to Credit Extensions. 4.01 Conditions of Initial Credit ExtensionEffectiveness TC "4.01 Conditions of Effectiveness" \f C \l "2" \* MERGEFORMAT AUTONF D3_TC. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to This Agreement shall become effective solely upon satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt Agent shall have received from each of the followingCompany, each the L/C Issuer and the Lenders a counterpart of which shall be originals or telecopies or other electronic image scan transmission this Agreement signed on behalf of such party (e.g.and, “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer in the case of the signing Loan Party (if applicable):
(i) executed counterparts of this Agreement;
(ii) a Note executed by each applicable Borrower in favor of each Lender requesting a Note;
(iii) such certificates of resolutions or other actionCompany, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party 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 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;
(iv) copies of each Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser Xxxxxx Casgrain LLP and XxXxxxx Xxxxxx LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory Company).
(b) The Administrative Agent shall have received from each Guarantor a counterpart of the Guaranty signed by a Responsible Officer of such Guarantor.
(c) The Administrative Agent shall have received Notes executed by the Company in form and substance favor of each Lender requesting Notes (to the Agents, certifying extent such request has been delivered to the Company at least two (A2) Business Days prior to the Closing Date).
(d) The Administrative Agent shall have received from the secretary or assistant secretary or a Responsible Officer of each Loan Party a certificate dated the Closing Date and certifying:
(i) that attached thereto is a true and complete copy of the conditions specified certificate or articles of incorporation, certificate of formation or other equivalent Organization Documents, including all amendments thereto, of such Loan Party, certified as of a recent date by the Secretary of State (or other similar official or Governmental Authority) of the jurisdiction of its organization,
(ii) that attached thereto is a true and complete copy of a certificate as to the good standing of such Loan Party as of a recent date from such Secretary of State (or other similar official or Governmental Authority),
(iii) that attached thereto is a true and complete copy of the bylaws, limited liability company agreement or equivalent Organization Document of such Loan Party as in Sections ARTICLE IV(oeffect on the Closing Date and at all times since a date prior to the date of the resolutions described in the following clause (iv),
(iv) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (por equivalent governing body) have been satisfiedof such Loan Party, (B) either that (1) no consents, licenses or approvals are required in connection with authorizing the execution, delivery and performance by any Loan Party and the validity against such Loan Party of the Loan Documents to which it is a partyparty and required hereby and that such resolutions have not been modified, rescinded or (2) that all such consents, licenses and approvals have been obtained amended and are in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents 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 (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral 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 are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, and
(iiv) the payment of all fees and other amounts due as to the Credit Parties by the Borrowers incumbency and specimen signature of each officer or authorized signatory executing this Agreement or any other Loan Document delivered in connection herewith on the Closing Date as required under the behalf of such Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009Party.
(e) The Administrative Agent shall have receivedreceived favorable opinions of Jxxxxx & Block LLP, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with form agreed on or prior to the Loan Parties’ then current practicesClosing Date.
(f) The Lead Borrower or any Subsidiary Administrative Agent shall have entered into received a certificate of a Responsible Officer of the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory Company certifying as to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds satisfaction of the Term Loans conditions set forth in a minimum amount of $125,000,000Sections 4.02(a) and (b).
(g) The Agents Since April 30, 2022 there shall not have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agentsoccurred any Material Adverse Effect.
(h) All necessary consents The Loan Parties shall have (i) paid all accrued and approvals unpaid interest on the revolving loans outstanding under the Existing Credit Agreement to the transactions contemplated hereby shall have been obtainedClosing Date, (ii) prepaid any revolving loans outstanding under the Existing Credit Agreement to the extent necessary to keep the outstanding Revolving Loans ratable with the revised Revolving Commitments as of the Closing Date, and (iii) paid all accrued fees owing to the lenders under the Existing Credit Agreement to the Closing Date.
(i) Upon the reasonable request of any Lender made at least ten (10) days prior to the Closing Date, the Company shall have provided to such Lender 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 (5) days prior to the Closing Date.
(j) At least five (5) days prior to the Closing Date, if the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, it shall deliver to the Administrative Agent and the Lenders a Beneficial Ownership Certification in relation to the Company.
(k) All fees and expenses earned, due and payable to the Administrative Agent, the Arranger or the Lenders required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jl) The Borrowers Unless waived by the Administrative Agent, the Company shall have paid (directly to such counsel if requested by the Administrative Agent) all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent required to be paid, to the extent payable by the Borrowers hereunder and invoiced at least two (2) days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings and required to be paid by the Company (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents 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 Patriot Act.
(l) Since June 8, 2009, 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) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower Company and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesAdministrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.029.03, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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. .
4.02 Conditions to all Credit Extensions TC "4.02 Conditions to all Credit Extensions" \f C \l "2" \* MERGEFORMAT AUTONF D3_TC. The obligation of each Lender and the L/C Issuer to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan Loans to another Type of Committed Loanthe other Type, or a continuation of LIBO Rate Term SOFR Loans or BA Equivalent Alternative Currency Term Rate Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(oa) The representations and warranties of the Borrowers Company and each other Loan Party contained in Article V V, or which are contained in any other Loan Documentdocument furnished at any time under or in connection herewith, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, 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 respects as of such earlier date, and except that for purposes of this Section 04.02, the representations and warranties contained in subsections clauses (a), ) and (b) and (f) of Section 5.01 5.05 shall be deemed to refer to the most recent statements, if any, statements furnished pursuant to clauses (a), (b) and (db), respectively, of Section 06.01.
(pb) No Default shall exist, or would result from from, such proposed Credit Extension or from the application of the proceeds thereof.
(qc) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.
(d) In the case of a Credit Extension to be denominated in an Alternative Currency, such currency remains an Eligible Currency.
(e) If the applicable Borrower is a Designated Borrower, then the conditions of Section 2.17 to the designation of such Borrower as a Designated Borrower shall have been met. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan Loans to another the other Type of Committed Loan or a continuation of LIBO Rate Term SOFR Loans or BA Equivalent Alternative Currency Term Rate Loans) submitted by the Lead a Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o4.02(a) and (pb) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Conditions Precedent to Credit Extensions. 4.01. Conditions of Precedent to Initial Credit Extension. The obligation effectiveness of the L/C 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 Agent shall have received the following, each dated the Effective Date (or, in the case of which shall be originals or telecopies or other electronic image scan transmission (e.g.certificates of governmental officials, “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specifieda recent date before the Effective Date), and each properly executed by a Responsible Officer of in form and substance reasonably satisfactory to the signing Loan Party (if applicable):Administrative Agent:
(i) executed counterparts of this Agreement;
(ii) a Note Notes executed by each applicable the Borrower in favor of each Lender requesting a NoteNotes;
(iii) such certificates of resolutions or other action, equivalent action and incumbency certificates and/or other certificates of Responsible Officers of each Loan Party the Borrower 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 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 the Borrower is a party;
(iv) copies documents and certifications evidencing that the Borrower is validly existing and in good standing in its jurisdiction of each Loan Party’s organization;
(v) a certificate or articles signed by a Responsible Officer of incorporation and bylaws the Borrower certifying
(or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdictionA) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that, other than as publicly disclosed in the Form 10-K of the Borrower for the fiscal year ended December 31, 2023, 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 certificate of good standing Material Adverse Effect; (where applicableC) the current Debt Ratings and (D) that there are no actions, suits, investigations or such other customary functionally equivalent certificatesproceedings pending or, to the extent available knowledge of the Borrower, threatened in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease any court or operation of properties before any arbitrator or the conduct of its business requires such qualification, except to the extent governmental authority that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(vvi) a favorable customary opinion of (x) Skadden, Arps, Slate, Xxxxxx & Xxxxxxx & Xxxx LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser Xxxxxx Casgrain LLP and XxXxxxx Xxxxxx LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance reasonably satisfactory to the Agents, certifying (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any 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, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note IndentureAdministrative Agent;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Effective Date is being terminated, all obligations thereunder terminated (other than those terms therein that are being paid expressly stated to survive termination or repayment in full (except to the extent expressly set forth thereinfull), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral 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 are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xvviii) (A) all UCC financing statements and PPSA financing statements, required by Law a solvency certificate from the treasurer or reasonably requested by other financial officer of the Agents or Borrower substantially in the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereofform of Exhibit I hereto.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all All accrued and invoiced fees and other amounts due expenses of the Lead Arrangers, the Administrative Agent and the Lenders (including the fees and expenses of counsel for the Administrative Agent) required to be paid on or before the Effective Date shall have been paid, to the Credit Parties by extent invoiced at least three (3) Business Days prior to the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Effective Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect at least 3 Business Days prior to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Effective Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money money-laundering rules and regulations regulations, including, without limitation, the Patriot PATRIOT Act.
(l) Since June 8, 2009in each case, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred to the extent requested by the Administrative Agent at least 10 days prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Effective Date, and such notice shall be conclusive and binding on (ii) at least 3 Business Days prior to the Loan PartiesEffective Date, to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower, to the extent requested by the Administrative Agent at least 10 days prior to the Effective Date. Without limiting the generality of the provisions of Section 9.029.04, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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 Effective Date specifying its objection thereto. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, 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 respects as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or shall notify the Canadian AgentBorrower and the Lenders of the occurrence of the Effective Date, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, and such notice shall be deemed to be a representation conclusive and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to complybinding.
Appears in 1 contract
Conditions Precedent to Credit Extensions. Conditions 01Conditions of Initial Credit Extension. Extension The obligation of the 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 or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (in each case except for the Acquisition Documents followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):
(ior, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to Agent and each of the Lenders: executed counterparts of this Agreement;
(ii) , all Collateral Documents, the Guaranty, and the Acquisition Documents, in each case sufficient in number for distribution to Agent, each Lender and Borrower; a Note executed by each applicable 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 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 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;
(iv) copies of ; such documents and certifications as Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s 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 (x) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Domestic Loan Parties, Parties reasonably acceptable to Agent addressed to the Administrative Agent and each Domestic Lender, as to customary the matters set forth concerning the Domestic Loan Parties and the Loan DocumentsDocuments in form and substance reasonably satisfactory to Agent; and (y) Fraser Xxxxxx Casgrain LLP and XxXxxxx Xxxxxx LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any 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 (B) stating that no such consents, licenses or approvals are so required; 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, (B) that there has been no event or circumstance since December 31, 2005 that has had or could be reasonably expected to have, either individually or in the aggregate, an Acquisition Target Material Adverse Effect, and (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on that there has not occurred a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth material adverse change in the post-Closing Letterfacts and information regarding Borrower or Acquisition Target as represented through May 1, 2006. evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
(ix) ; a payoff letter from duly completed Compliance Certificate as of the agent for last day of the lenders fiscal quarter of Borrower most recently ended prior to the Closing Date, signed by a Responsible Officer of Borrower; evidence that all commitments under the (i) Amended and Restated Credit Agreement, dated as of June 30, 2004, among Borrower, Agent and a syndicate of lenders and (ii) Loan and Security Agreement, dated August 18, 2005, between Keurig, Incorporated and Silicon Valley Bank (collectively, the "Existing Credit Agreement reasonably satisfactory in form and substance to the Agents evidencing that Agreement") other than the Existing Letter of Credit Agreement has have been or concurrently with the Closing Date is are being terminated, and all obligations outstanding amounts thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, been or concurrently with the Closing Date are being, being released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral 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 are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8other assurances, 2009 relating thereto certificates, documents, consents, reports, appraisals, field audits or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder opinions as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents 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 Patriot Act.
(l) Since June 8, 2009, 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) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders 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 9.02, for purposes of determining compliance with the conditions specified in this Section 0, each Lender (other than an Agent or the Canadian Agent) 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. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, 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 respects as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Issuer, Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan Lender, Arranger or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent reasonably may require, including without limitation environmental reports, audits, appraisals and the Canadian Agent (in accordance with the terms of this Agreement) like related to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to complyParties.
Appears in 1 contract
Samples: Revolving Credit Agreement (Green Mountain Coffee Roasters Inc)
Conditions Precedent to Credit Extensions. 4.01 Conditions of to the Initial Credit ExtensionBorrowing on the Closing Date. The obligation obligations of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is are subject to satisfaction (or waiver by the Administrative Agent) 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 or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Parties which are party thereto, each dated the Closing Date (if applicableor, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of (x) this Agreement bearing the signatures of each of the Borrower, the Administrative Agent and each Lender with commitments to make Loans as designated on Schedule 2.01 and (y) the Restatement Agreement bearing the signatures of each of the Borrower, the Administrative Agent and each of the lenders under the Existing Credit Agreement party thereto, which shall together constitute the “Required Lenders” (under and as defined in the Existing Credit Agreement);
(ii) a executed counterparts of the Ratification Agreement;
(iii) an original Note executed by each applicable the Borrower in favor of each new 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 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 and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer on behalf of such Loan Party in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(ivv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each of the Loan Parties is duly organized or formed, validly existing and in good standing in its jurisdiction of organization, including, certified copies of each the Organization Documents of the Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate Parties, certificates of good standing (where applicable, or such other customary functionally equivalent certificates, to of the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse EffectParties;
(vvi) a favorable opinion of (x) Skadden, Arps, Slate, Xxxxxxx Sxxxxxxx & Xxxx LLP, special counsel Cxxxxxxx LLP in form and substance reasonably satisfactory to the Domestic Loan Administrative Agent and the Secured Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser Xxxxxx Casgrain LLP and XxXxxxx Xxxxxx LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vivii) copies of the financial statements referred to in Sections 5.05(a) and 5.05(b) (to the extent not previously delivered under the Existing Credit Agreement) and a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying Borrower (A) certifying that the conditions specified in Sections ARTICLE IV(o4.02(a) and (pb) have been satisfied, (B) 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, either that individually or in the aggregate, a Material Adverse Effect, and (1C) no (x) attaching copies of all consents, licenses or and approvals are of Governmental Authorities, shareholders and other Persons required in connection with the execution, delivery and performance by any each Loan Party and the validity against such each Loan Party of the Loan Documents to which it is a partyparty and required in connection with the Loan Documents and the transactions contemplated thereby (including, or (2) that without limitation, the expiration, without imposition of conditions, of all applicable waiting periods in connection with the transactions contemplated by the Loan Documents), and such consents, licenses and approvals have been obtained and are shall be in full force and effect, or (Cy) thatstating that no such consents, as licenses or approvals are so required since the closing of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omittedExisting Credit Agreement;
(viii) except as set forth in existing insurance certificates previously delivered to the post-Closing Letter, Administrative Agent or other evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in full force, including in either case evidence that the Administrative Agent, on behalf of the Lenders, is an additional insured or lender’s loss payee, as the case may be, under all endorsements insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral;
(ix) to the extent not held by the Administrative Agent prior to the Closing Date or set forth on Schedule 6.13, all original certificates evidencing all of the issued and outstanding shares of capital stock or other Equity Interest required to be pledged pursuant to the terms of the Pledge Agreement, which certificates shall be accompanied by undated stock powers duly executed in blank by each relevant pledgor in favor of the Administrative Agent.
(x) to the extent not held by the Administrative Agent or prior to the Canadian Closing Date, the original Intercompany Notes and all other notes and instruments required to be pledged pursuant to the terms of the Pledge Agreement, duly endorsed in blank by each relevant pledgor in favor of the Administrative Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ixxi) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11) or similar search reports certified by a payoff letter from party acceptable to the agent for Administrative Agent, dated a date reasonably near (but prior to) the lenders under Closing Date, listing all effective UCC financing statements, tax liens and judgment liens since the date of such searches in connection with the Existing Credit Agreement reasonably satisfactory in form and substance to which name any Loan Party, as the Agents 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 (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement)debtor, together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties such financing statements (originals none of which are being delivered (other than financing statements filed pursuant to the US Term Loan Agent subject to terms hereof in favor of the Intercreditor AgreementAdministrative Agent) shall cover any of the Collateral, other than Liens existing on the Closing Date and permitted by Section 7.01(b);
, (xic) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Partiesor (j));
(xii) acknowledgment copies of UCC financing statements (or delivery in proper form for filing) naming the Intercreditor Borrower and each other Loan Party as the debtor and the Administrative Agent as the secured party, which such UCC financing statements have been filed, or have been delivered for filing, under the UCC of all jurisdictions as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the first priority security interest of the Administrative Agent pursuant to the Security Agreement and the Pledge Agreement;
(Axiii) a written report regarding evidence that all other action that the results Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents has been taken (including, without limitation, receipt of a commercial finance examination of the Loan Partiesduly executed payoff letters, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;UCC-3 termination statements); and
(xiv) results of searches such other assurances, certificates, documents, consents and waivers, estoppel certificates, or other evidence reasonably satisfactory to opinions as the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to Administrative Agent, the Co-Collateral Agents) indicating L/C Issuer, the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing DateSuch financial, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability legal due diligence and information regarding the Borrower and its Subsidiaries as the Administrative Agent and its legal counsel shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000have requested.
(c) The Administrative Agent Engagement Letter and each Fee Letter shall be in full force and effect and the Canadian Agent Borrower and each of the Loan Parties shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer complied with all of the Lead Borrower or the Parenttheir respective obligations thereunder.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have receivedreceived certification, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents Administrative Agent, as to the financial condition and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds solvency (as described in Section 5.24) of the Term Loans in Borrower, individually, and the Loan Parties, taken as a minimum amount whole from the chief financial officer of $125,000,000the Borrower.
(ge) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto Any fees and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees expenses required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid paid, including those fees and expenses set forth in full, the Engagement Letter and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fulleach Fee Letter.
(jf) The Borrowers Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents Administrative Agent and the Arrangers to the extent payable by the Borrowers hereunder and invoiced at least three Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by of counsel to the Borrowers hereunder Administrative Agent and the Arrangers as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements of counsel to the Administrative Agent incurred or to be incurred by it through the closing proceedings to the extent invoiced at least three Business Days prior to or on the Closing Date (provided provided, that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or Arrangerthe Administrative Agent).
(kg) Since December 31, 2018, no changes or developments shall have occurred that either individually or in the aggregate constitutes or has had or could reasonably be expected to constitute or have a Material Adverse Effect.
(h) The Agents representations and warranties of the Borrower and each other Loan Party contained in ARTICLE V or any other Loan Document shall be true and correct in all material respects (or, if any such representation or warranty is by its terms qualified by concepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects), 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 respects (or, if any such representation or warranty is by its terms qualified by concepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects) as of such earlier date.
(i) Prior to, or substantially concurrently with, the borrowing of the Loans on the Closing Date, the Borrower shall have received repaid (i) all outstanding principal, together with all accrued and unpaid interest, in respect of the Term Loans (under and as defined in the Existing Credit Agreement), and (ii) all accrued and unpaid interest. commitment and letter of credit fees in respect of the Revolving Credit Loans (under and as defined in the Existing Credit Agreement) and Letters of Credit (under and as defined in the Existing Credit Agreement).
(j) Upon the reasonable request of any Lender made at least 10 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 required by regulatory authorities under so requested in connection with applicable “know your customer” and anti-money money-laundering rules and regulations regulations, including, without limitation, the Patriot PATRIOT Act.
, in each case at least 3 days prior to the Closing Date and (ly) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred at least 5 days prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date , any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have occurred on or before July 31delivered, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Dateto each Lender that so requests, and a Beneficial Ownership Certification in relation to such notice shall be conclusive and binding on the Loan PartiesParty. Without limiting the generality of the provisions of Section 9.029.04, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, 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 respects as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Samples: Credit Agreement (Integra Lifesciences Holdings Corp)
Conditions Precedent to Credit Extensions. Conditions of Initial Credit Extension. The obligation of the 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 or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) copies (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Borrower, as applicable, each dated the Closing Date (if applicable):
(ior, 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 and each of the Lenders: executed counterparts of this Agreement;
(ii) ; a Note executed by each applicable the 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 the 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 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 Documents; such documents and certifications as the Administrative Agent may reasonably require to which such Loan Party evidence that the Borrower is a party;
(iv) copies of each Loan Party’s certificate duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that the Borrower is validly existing, in good standing (where applicable, or such other customary functionally equivalent certificates, and qualified to the extent available engage in business in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation it is organized; written opinion(s) of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Domestic Loan PartiesBorrower, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser Xxxxxx Casgrain LLP and XxXxxxx Xxxxxx LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any 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, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents 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 (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral 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 are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereof.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents 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 Patriot Act.
(l) Since June 8, 2009, 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) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders 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 9.02, for purposes of determining compliance with the conditions specified in this Section 0, each Lender (other than an Agent or the Canadian Agent) 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. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, 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 respects as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.;
Appears in 1 contract
Samples: Credit Agreement (DPL Inc)
Conditions Precedent to Credit Extensions. 4.01 Conditions of Initial Effectiveness of this Agreement [and Credit ExtensionExtension]on the Closing Date . The effectiveness of this Agreement[ and the obligation of the L/C Issuer and each Lender to make its initial any Credit Extension hereunder is hereunder] on the Closing Date [are]was subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or originals, telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” “via e-mail”) (followed promptly by originals) unless otherwise specified, 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 Agent:
(i) counterparts of this Agreement each properly executed by a Responsible Officer of the signing Loan Party (if applicable):
(i) executed counterparts of this Agreementand the Lenders sufficient in number for distribution to the Agent, each Lender and the Lead Borrower;
(ii) a Note executed by each applicable Borrower 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 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 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 become a party;
(iv) copies of each Loan Party’s certificate or articles of incorporation Organization Documents and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificatesdocuments and certifications as the 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 the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) SkaddenGxxxxxxxx Txxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary such matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser Xxxxxx Casgrain LLP and XxXxxxx Xxxxxx LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsmay reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, Borrower certifying (A) that the conditions specified in Sections ARTICLE IV(o) 0 and (p) 0 have been satisfied, (B) that there has been no event or circumstance since the date of the Closing Date 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 any 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, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ixviii) a payoff letter from the agent Term Loan Agent for the lenders under the Existing Credit Agreement reasonably Term Loan Agreement, satisfactory in form and substance to the Agents Agent, evidencing that the Existing Credit Term Loan Agreement has been or concurrently with the Closing Date is being terminated, all obligations thereunder have been or concurrently with the Closing Date are being paid in full (except to the extent expressly set forth therein)full, and all Liens securing obligations under the Existing Credit Term Loan Agreement have been, been or concurrently with the Closing Date are being, being released;
(xix) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement)thereunder, together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement)Parties;
(xix) all other Loan Documents set forth on Schedule 4.01(a)(xi) heretoDocuments, each duly executed by the applicable Loan Parties;
(xiixi) appraisal based on forced liquidation value by a third party appraiser acceptable to the Intercreditor AgreementAgent of all Eligible Trade Names of the Borrowers;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xivxii) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents Agent (in each case dated as of a date reasonably satisfactory to the Co-Collateral AgentsAgent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases satisfactory to the Agent are being tendered concurrently with the initial such extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made; and;
(xvxiii) (A) all UCC financing statements documents and PPSA instruments, including Uniform Commercial Code financing statements, required by Law law or reasonably requested by the Agents or the Canadian Agent, as applicable, Agent to be filed, registered or recorded to create, create or perfect or protect the first priority Liens intended to be created under the Loan DocumentsDocuments and all such documents and instruments shall have been so filed, registered or recorded to the satisfaction of the Agent, (B) the Credit Card Notifications, and Account Control Agreements required pursuant to Section 0 hereof shall have been obtained, and (BC) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior control agreements with respect to the Closing Date pursuant to Section 6.07 hereofLoan Parties’ securities and investment accounts have been obtained; and
(xiv) such other assurances, certificates, documents, consents or opinions as the Agent reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing DateLoans, (ii) the payment of all fees and other amounts due any charges to the Credit Parties by Loan Account made in connection with the Borrowers on the Closing Date as required under the Loan Documents, credit facility contemplated hereby and (iii) all Letters of Credit to be issued on at, or immediately subsequent to, the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000twenty-five percent (25%) of the Revolving Loan Cap.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30May 5, 20092018, and executed by a Responsible Officer of the Lead Borrower or the ParentBorrower.
(d) The Co-Collateral Agents Agent shall be reasonably satisfied with that any financial statements delivered to it and the results Lenders fairly present the business and financial condition of the inventory appraisal conducted by Great American Group dated April, 2009Loan Parties and that there has been no Material Adverse Effect since the date of the Closing Date Audited Financial Statements.
(e) The Administrative Agent and the Lenders shall have received, received and be satisfied with (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (iix) a detailed forecast financial projections and business assumptions on a quarterly basis for the one year period commencing with following the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010Closing Date, which shall include an Availability modelmodel (prepared on a twelve month basis), Americas Consolidated income statement, balance sheet, and statement of cash flow, by monthand (y) a detailed forecast on an annual basis for each of the three Fiscal Years thereafter, which shall include an Availability model, Consolidated income statement, balance sheet, and statement of cash flow, in each case prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practicespractices and (ii) such other information (financial or otherwise) reasonably requested by the Agent.
(f) The Lead Borrower There shall not be pending any litigation or any Subsidiary shall other proceeding, the result of which, either individually or in the aggregate, could reasonably be expected to have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000Material Adverse Effect.
(g) The Agents There shall not have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies occurred any default of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agentsany Material Contract of any Loan Party.
(h) All necessary consents and approvals to The consummation of the transactions contemplated hereby shall have been obtainednot violate any Law or any Organization Document.
(i) All fees required to be paid by to the Borrowers to any of the Agents Agent or the Arrangers Arranger on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings Closing Date (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arrangerthe Agent).
(k) The Agents Upon the reasonable request of the Agent or any Lender made at least ten (10) days prior to the Closing Date, the Lead Borrower shall have received all provided to the Agent and such Lender the documentation and other information required by regulatory authorities under so requested in connection with applicable “know your customer”, Anti-Corruption Laws and Anti-Money Laundering, including the Act, in each case at least five (5) days prior to the Closing Date. At least five (5) days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” and anti-money laundering rules and regulations including, without limitation, under the Patriot ActBeneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower.
(l) Since June 8, 2009, no 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) intentionally omitted.
(n) The Closing Date There shall not have occurred on any disruption or before July 31material adverse change in the United States financial or capital markets in general that has had, 2009. The Administrative Agent shall notify in the Lead Borrower and the Lenders reasonable opinion of the Closing DateAgent, and such notice shall be conclusive and binding a material adverse effect on the Loan Partiesmarket for loan syndications or adversely affecting the syndication of the Loans. Without limiting the generality of the provisions of Section 9.020, for purposes of determining compliance with the conditions specified in this Section 0, each Lender (other than an Agent or the Canadian Agent) 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. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, 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 respects as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Conditions Precedent to Credit Extensions. 4.01 Conditions of to the Initial Credit ExtensionBorrowing on the Closing Date. The obligation obligations of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is are subject to satisfaction (or waiver in accordance with Section 10.01) 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 originals, telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) .pdfs (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Parties which are party thereto, each dated the Closing Date (if applicableor, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of this AgreementAgreement bearing the signatures of each of the Borrower, the Administrative Agent and each Lender with commitments to make Loans as designated on Schedule 2.01;
(ii) a an original Note executed by each applicable the 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 and (B) the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer on behalf of such Loan Party in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) copies such documents and certifications as the Administrative Agent may reasonably require to evidence that each of each the Loan Party’s certificate or articles of incorporation and bylaws Parties (or equivalent or comparable constitutive documents other than San Diego Health Alliance with respect to any non-U.S. jurisdictiongood standing) is duly organized or formed, validly existing and a certificate in good standing in its jurisdiction of organization, including, certified copies of the Organization Documents of the Loan Parties, certificates of good standing (where applicable, or such other customary functionally equivalent certificates, to of the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse EffectParties;
(v) a favorable opinion opinions of (x) Skadden, Arps, Slate, Xxxxx Xxxxxxx & Xxxx US LLP, special counsel to the Domestic Loan Borrower and the Guarantors organized in Delaware, California, Massachusetts, Texas, Pennsylvania and Virginia, in each case, in form and substance reasonably satisfactory to the Administrative Agent and the Secured Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser Xxxxxx Casgrain LLP and XxXxxxx Xxxxxx LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) copies of the financial statements referred to in Section 5.05(a) and a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying Borrower (A) certifying that the conditions specified in Sections ARTICLE IV(o4.02(a) and (pb) have been satisfied, satisfied and (B) either that (1) no consents, licenses or approvals are required in connection with the execution, delivery and performance by any 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, (C) that, as of the Closing Date after giving effect certifying to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, condition set forth in clauses (e) and (Df) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenturebelow;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, insurance certificates or other evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in full force, including in either case evidence that the Administrative Agent, on behalf of the Lenders, is an additional insured or lender’s loss payee, as the case may be, under all endorsements insurance policies maintained with respect to the assets and properties of the Loan Parties that constitutes Collateral;
(viii) all original certificates evidencing all of the issued and outstanding shares of capital stock or other Equity Interest required to be pledged pursuant to the terms of the Security Agreement, which certificates shall be accompanied by undated stock powers duly executed in blank by each relevant pledgor in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form all notes and substance instruments required to be pledged pursuant to the Agents evidencing that terms of the Existing Credit Agreement has been or concurrently with Security Agreement, duly endorsed in blank by each relevant pledgor in favor of the Closing Date is being terminated, all obligations thereunder are being paid in full (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, releasedAdministrative Agent;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and certified copies of certificates evidencing any stock being pledged under Uniform Commercial Code Requests for Information or Copies (Form UCC-11) or similar search reports certified by a party acceptable to the Pledge Agreement on Administrative Agent, dated a date reasonably near (but prior to) the Closing Date (to Date, listing all effective UCC financing statements, tax liens and judgment liens since the extent required by date of such searches in connection with the Pledge Agreement)Existing Credit Agreement which name any Loan Party, as the debtor, together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties such financing statements (originals none of which are being delivered (other than financing statements filed pursuant to the US Term Loan Agent subject to terms hereof in favor of the Intercreditor AgreementAdministrative Agent) shall cover any of the Collateral, other than Liens existing on the Closing Date and permitted by Section7.01);
(xi) all acknowledgment copies of UCC financing statements (or delivery in proper form for filing) naming the Borrower and each other Loan Documents set forth on Schedule 4.01(a)(xi) heretoParty as the debtor and the Administrative Agent as the secured party, each duly executed by which such UCC financing statements have been filed, or have been delivered for filing, under the applicable Loan PartiesUCC of all jurisdictions as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the first priority security interest of the Administrative Agent pursuant to the Security Agreement;
(xii) evidence that all other action that the Intercreditor Agreement;
Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Collateral Documents has been taken (A) a written report regarding the results including, without limitation, receipt of a commercial finance examination of the Loan Partiesduly executed payoff letters, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral Agents) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which UCC-3 termination statements and releases are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been madestatements); and
(xvxiii) (A) all UCC financing statements such other assurances, certificates, documents, consents and PPSA financing statementswaivers, required by Law estoppel certificates, or reasonably requested by opinions as the Agents Administrative Agent, the L/C Issuer, the Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have receivedreceived certification, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and receivedAdministrative Agent, or substantially simultaneously with as to the initial Credit Extension under this Agreement shall receive, gross proceeds solvency (as described in Section 5.24) of the Term Loans in Borrower, individually, and the Loan Parties, taken as a minimum amount whole from the chief financial officer of $125,000,000the Borrower.
(gc) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto Any fees and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees expenses required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid paid, including those fees and expenses set forth in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullEngagement Letter.
(jd) The Borrowers Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents Administrative Agent and the Arrangers to the extent payable by the Borrowers hereunder and invoiced at least three Business Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by of counsel to the Borrowers hereunder Administrative Agent and the Arrangers as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements of counsel to the Administrative Agent incurred or to be incurred by it through the closing proceedings to the extent invoiced at least three Business Days prior to or on the Closing Date (provided provided, that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or Arranger)the Administrative Agent) .
(ke) Since December 31, 2020, no changes or developments shall have occurred that either individually or in the aggregate constitutes or has had or could reasonably be expected to constitute or have a Material Adverse Effect.
(f) The Agents representations and warranties of the Borrower and each other Loan Party contained in ARTICLE V or any other Loan Document shall be true and correct in all material respects (or, if any such representation or warranty is by its terms qualified by concepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects), 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 respects (or, if any such representation or warranty is by its terms qualified by concepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects) as of such earlier date.
(g) Prior to, or substantially concurrently with, the borrowing of the Loans on the Closing Date, the Borrower shall have received (i) repaid all outstanding principal, together with all accrued and unpaid interest, in respect of Indebtedness under and as defined in the Existing Credit Agreement and permanently terminated all commitments thereunder and (ii) redeemed in full all of the Borrower’s Existing Notes.
(h) Upon the reasonable request of any Lender made at least 5 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 required by regulatory authorities under so requested in connection with applicable “know your customer” and anti-money money-laundering rules and regulations regulations, including, without limitation, the Patriot PATRIOT Act.
, in each case at least 2 days prior to the Closing Date and (ly) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred at least 5 days prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date , any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have occurred on or before July 31delivered, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Dateto each Lender that so requests, and a Beneficial Ownership Certification in relation to such notice shall be conclusive and binding on the Loan PartiesParty. Without limiting the generality of the provisions of Section 9.029.04, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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. .
4.02 Conditions to all Credit Extensions. The Other than as may be expressly set forth in Section 2.16 in connection with the establishment of any Incremental Facilities, the obligation of each Lender and the L/C Issuer to honor any Request for Credit Extension (other than a Committed Loan Notice Request for Credit Extension requesting only a conversion of a Committed Loan Loans to another Type of Committed Loanthe other Type, or a continuation of LIBO Rate Loans or BA Equivalent Term SOFR Loans, but including, for the avoidance of doubt, any Request for Credit Extension requesting a Borrowing on the Closing Date) and of each L/C Issuer to issue each Letter of Credit is subject to the satisfaction (or waiver in accordance with Section 10.01) of the following conditions precedent:
(oa) The representations and warranties of the Borrowers Borrower and each other Loan Party contained in Article V or any other Loan Document, Document shall be true and correct in all material respects (or, in the case of if any such representation and or warranty is by its terms qualified by materialityconcepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects) on and as of the date of such Credit Extension, (i) 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 respects (or, if any such representation or warranty is by its terms qualified by concepts of materiality or reference to Material Adverse Effect, such representation or warranty shall be true and correct in all respects) as of such earlier datedate and (ii) except that, and except that for purposes of this Section 04.02, the representations and warranties contained in subsections subsection (a), (b) and (f) of Section 5.01 5.05 shall be deemed to refer to the most recent statements, if any, statements furnished pursuant to clauses subsections (a), (b) and (db), respectively, of Section 06.01.
(pb) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(qc) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan Loans to another the other Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Term SOFR Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o4.02(a) and (p4.02(b) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Conditions Precedent to Credit Extensions. 4.01 Conditions to the Amendment and Restatement and the Extension of Initial Credit Extensionthe Term Loan. The obligation of the L/C Issuer and each Lender to enter into the Amendment and Restatement and make its initial Credit Extension hereunder extension of the Term Loan 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 or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) facsimiles (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated as of the Restatement Date (if applicable):or, in the case of certificates of governmental officials, as of a recent date before the Restatement Date) and each in form and substance reasonably satisfactory to the Lender and its legal counsel:
(i) executed counterparts of this Agreement, the Restated Disclosure Letter, each New Guarantor Accession Agreement, and the Guarantor Consent sufficient in number for distribution to the Lender and the Borrower;
(ii) a Term Note (if requested by the Lender) executed by each applicable the Borrower in favor of each the Lender requesting and a NoteRevolving Note (if requested by the Lender) executed by the Borrower in favor of the Lender;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the 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 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;
(iv) copies of such documents and certifications as the Lender may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each such Loan Party is validly existing, in good standing (where applicable, and qualified to engage in business in its state of organization or such other customary functionally equivalent certificates, to the extent available formation and in the applicable jurisdiction) from each state in which such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effectprincipal offices are located;
(v) a favorable opinion certificate of (x) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser Xxxxxx Casgrain LLP and XxXxxxx Xxxxxx LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any 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 (CB) thatstating that no such consents, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis licenses or approvals are Solvent, and so required;
(Dvi) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture[reserved];
(vii) intentionally omitteda favorable opinion of legal counsel to the Borrower (which may be internal legal counsel), addressed to the Lender, as to the matters addressed in the opinion of legal counsel to the Borrower delivered to the Lender in connection with the closing of the Existing Credit Agreement;
(viii) except such board resolutions, officer’s certificates, and corporate and other documents as set forth the Lender shall reasonably request in connection with the post-Closing Letter, evidence that all insurance required accession of the New Guarantors to be maintained the Guaranty pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;New Guarantor Accession Agreements; and
(ix) a payoff letter from such other assurances, certificates, documents, or consents or opinions as the agent for Lender reasonably may require.
(i) the lenders aggregate Outstanding Amount of Total Revolving Outstandings outstanding under the Existing Credit Agreement reasonably satisfactory in form and substance immediately prior to the Agents evidencing that the Existing Credit Agreement has been or concurrently with the Closing Restatement Date is being terminated, all obligations thereunder are being paid in full (except shall not exceed an amount equal to the extent expressly set forth therein)Revolving Commitment hereunder, (ii) the aggregate Outstanding Amount of all Revolving Loans and all Liens securing obligations L/C Obligations, in each case outstanding under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (immediately prior to the extent required by the Pledge Agreement)Restatement Date and denominated in Alternative Currencies, together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered shall not exceed an amount equal to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination Dollar Equivalent of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral 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 are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been made; and
(xv) (A) all UCC financing statements and PPSA financing statements, required by Law or reasonably requested by the Agents or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan DocumentsAlternative Currency Sublimit hereunder, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereof.
(b) After giving effect to (iiii) the first funding under Outstanding Amount of the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations L/C Obligations outstanding under the Existing Credit Agreement on immediately prior to the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability Restatement Date shall not be less than $10,000,000exceed an amount equal to the Letter of Credit Sublimit hereunder.
(c) The Administrative Agent and the Canadian Agent Borrower shall have received a Borrowing Base Certificate dated the Closing Datepaid all unpaid fees (including all Commitment Fees), relating costs, expenses and interest, in each case to the month ended on June 30, 2009, and executed by a Responsible Officer of extent having accrued under the Lead Borrower or Existing Credit Agreement to the ParentRestatement Date.
(d) The Co-Collateral Agents Borrower shall have paid any fees (including the upfront fee specified in Section 2.08(b)) required to be reasonably satisfied with paid on or prior to the results of the inventory appraisal conducted by Great American Group dated April, 2009Restatement Date.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements Attorney Costs of counsels to the Agents and Arrangers Lender to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Restatement Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder Attorney Costs as shall constitute such counsels’ the Lender’s reasonable estimate of such fees, charges and disbursements Attorney Costs incurred or to be incurred by it through the closing proceedings related to the Amendment and Restatement (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or Arrangerthe Lender).
(kf) The Agents 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 Patriot Act.
(l) Since June 8, 2009, 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) intentionally omitted.
(n) The Closing Restatement Date shall have occurred on or before July 31December 15, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders 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 9.02, for purposes of determining compliance with the conditions specified in this Section 0, each Lender (other than an Agent or the Canadian Agent) 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. 2010.
4.02 Conditions to all Credit ExtensionsExtensions and to the Amendment and Restatement. The obligation of each the Lender to honor enter into the Amendment and Restatement and to make any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion or extension of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO a Eurocurrency Rate Loans or BA Equivalent LoansLoan) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(oa) The representations and warranties of the Borrowers Borrower and each other Loan Party contained in Article V or any other Loan DocumentDocument (i) that are qualified by materiality shall be true and correct, and (ii) that are not qualified by materiality, shall be true and correct in all material respects (orrespects, in the case of any representation and warranty qualified by materialityeach case, in all respects) on and as of the Restatement Date or the date of such Credit Extension, except as the case may be, except, in each case, 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 respects as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), ;
(b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No no Default shall exist, or would result from such proposed Credit Extension or from Amendment and Restatement, as the application of the proceeds thereof.case may be;
(qc) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension Loan Notice in accordance with the requirements hereof. Each Request for ; and
(d) in the case of a Credit Extension to be denominated in an Alternative Currency, there shall not have occurred any change in national or international financial, political or economic conditions or currency exchange rates or exchange controls which in the reasonable opinion of the Lender would make it impracticable for such Credit Extension to be denominated in the relevant Alternative Currency. Each Loan Notice (other than a Committed Loan Notice requesting only a conversion or extension of a Committed Loan to another Type of Committed Loan or a continuation of LIBO a Eurocurrency Rate Loans or BA Equivalent LoansLoan) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o4.02(a) and (pb) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Samples: Credit Agreement (Copart Inc)
Conditions Precedent to Credit Extensions. Conditions of Initial Credit ExtensionExtension . The effectiveness of this Agreement and the obligation of the 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 or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) (followed promptly by originals) unless otherwise specified, and each properly executed by a Responsible Officer of the signing Loan Party Party, each dated the Closing Date (if applicable):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:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by each applicable the 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 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;
(iv) copies of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party’s certificate Party is duly organized or articles of incorporation formed, and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of that each Loan Party is validly existing, in good standing and qualified to engage in business in (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdictionA) from such Loan Party’s its jurisdiction of organization and from (B) each jurisdiction where such Loan Party’s 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 (xA) SkaddenXxxxxx Xxxxxxx, Arpsin-house counsel to the Loan Parties, Slate, and (B) Xxxxxxx & Xxxx LLP, special counsel to the Domestic Loan Parties, in each case, addressed to the Administrative Agent and each Domestic Lender, as to customary the matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser Xxxxxx Casgrain LLP and XxXxxxx Xxxxxx LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Administrative Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsmay reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, certifying each Loan Party either (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no attaching copies of all consents, licenses or and approvals are required in connection with the execution, delivery and performance by any 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 (B) 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, (B) that there has been no event or circumstance since December 31, 2011 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, (C) thatthat 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) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have a Material Adverse Effect and (D) a calculation of the ratio of Total Indebtedness to Total Asset Value as of the Closing Date last day of the fiscal quarter of the REIT ending September 30, 2012;
(viii) a Solvency Certificate from the REIT certifying that, 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 Parties Party is, individually and together with its Subsidiaries on a consolidated basis are basis, Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(viiix) intentionally omittedan Availability Certificate;
(viiix) except as set forth in a Compliance Certificate, giving pro forma effect to the post-transactions to occur on the Closing LetterDate (including, without limitation, all Credit Extensions to occur on the Closing Date) (such Compliance Certificate, the “Pro Forma Closing Date Compliance Certificate”);
(xi) evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have has been obtained and are is in effect;
effect (ix) a payoff letter from and the agent for the lenders under the Existing Credit Agreement reasonably amount, types and terms and conditions of all such insurance shall be satisfactory in form and substance to the Agents 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 (except to the extent expressly set forth thereinAdministrative Agent), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(Afinancial statements referenced in Section 5.05(a) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral 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 are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been madeb); and
(xvxiii) (A) all UCC financing statements and PPSA financing statementssuch other assurances, required by Law certificates, documents, consents or reasonably requested by opinions as the Agents Administrative Agent, the L/C Issuer, the Swing Line Lender or the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereofRequired Lenders reasonably may require.
(b) After giving effect to (i) the first funding Any fees required hereunder or under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required Fee Letter to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in fullpaid.
(jc) The Borrowers Completion of all due diligence with respect to the REIT, the Borrower, and their respective Subsidiaries and properties in scope and determination satisfactory to the Administrative Agent, the Arrangers and Lenders in their sole discretion.
(d) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent payable by the Borrowers hereunder and 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 payable by the Borrowers hereunder as shall constitute such counsels’ its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and any Agent or Arrangerthe Administrative Agent).
(ke) The Agents shall have received all documentation representations and warranties of the Borrower and each other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations including, without limitation, the Patriot Act.
(l) Since June 8, 2009, no material changes in governmental regulations or policies affecting any Loan Party contained in Article V or any Credit Party other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower be true and the Lenders correct as of the Closing Date, and Date (except to the extent any such notice shall be conclusive and binding on the Loan Partiesrepresentation or warranty only speaks of a different date). Without limiting the generality of the provisions of the last paragraph of Section 9.029.03, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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. . Conditions to all Credit ExtensionsExtensions . The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan Loans to another Type of Committed Loanthe other Type, or a continuation of LIBO Eurodollar Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(oa) The representations and warranties of the Borrowers Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, 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 respects as of such earlier date, and except that for purposes of this Section 04.02, the representations and warranties contained in subsections (a), ) and (b) and (f) of Section 5.01 5.05 shall be deemed to refer to the most recent statements, if any, statements furnished pursuant to clauses subsections (a), (b) and (db), respectively, of Section 06.01.
(pb) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(qc) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.
(d) After giving effect to the proposed Credit Extension, Availability shall be greater than or equal to $0. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan Loans to another the other Type of Committed Loan or a continuation of LIBO Eurodollar Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, shall be deemed to be a representation and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o4.02(a), (b) and (pd) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to comply.
Appears in 1 contract
Conditions Precedent to Credit Extensions. 4.01 Conditions to Effectiveness of Initial Credit Extensionthis Agreement (Execution Date). The obligation This Agreement shall be effective upon satisfaction (or waiver in accordance with Section 11.01) of the L/C Issuer and each Lender conditions precedent set forth in this Section 4.01; provided that the obligations of the Lenders to make its initial Credit Extension Extensions hereunder is are subject to satisfaction (or waiver in accordance with Section 11.01) of the following conditions precedentprecedent set forth in Section 4.02 and Section 4.03:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies or other electronic image scan transmission (e.g., “pdf” or “tif” via e-mail) facsimiles (followed promptly by originals) unless otherwise specified, and each properly executed by dated the Execution Date (or, in the case of certificates of governmental officials, a Responsible Officer of recent date before the signing Loan Party (if applicableExecution Date):
(i) executed counterparts of this Agreement, in the number requested by the Administrative Agent;
(ii) the following, each in form and substance satisfactory to the Administrative Agent: a Note executed by each applicable Borrower in favor certificate of the secretary or an assistant secretary of each Lender requesting a Note;
of the Borrower and the Parent Guarantor (iiior the General Partner on behalf of the Parent Guarantor) such certificates certifying as to the incumbency and genuineness of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers the signature of each officer of such party executing Loan Party evidencing Documents to which it is a party and certifying that attached thereto is a true, correct and complete copy of (A) the authority certificate of each Loan Party to enter into limited partnership or formation of such party and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of incorporation or formation, (B) the limited partnership agreement, limited liability company agreement or other governing document of such party as in effect on the Execution Date, and (C) resolutions duly adopted by the board of directors (or other governing body) of such party authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Agreement and the other Loan Documents to which such Loan Party is 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;
(iviii) copies of each Loan Party’s certificate or articles of incorporation and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificates, to the extent available in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from each jurisdiction where such Loan Party’s ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser Xxxxxx Casgrain LLP and XxXxxxx Xxxxxx LLP, counsels to the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documents;
(vi) a certificate signed by a Responsible Officer of the Lead Borrower, satisfactory in form Parent Guarantor (or the General Partner on behalf of the Parent Guarantor) stating that all governmental and substance to the Agents, certifying (A) that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied, (B) either that (1) no consents, licenses or regulatory approvals are required necessary in connection with execution and delivery of this Agreement by the execution, delivery and performance by any Loan Party Parent Guarantor 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 Borrower shall have been obtained and are be in full force and effect, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis or stating that no such approvals are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents 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 (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(x) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement), together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);
(xi) all other Loan Documents set forth on Schedule 4.01(a)(xi) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xiv) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents (in each case dated as of a date reasonably satisfactory to the Co-Collateral 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 are being tendered concurrently with the initial extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents for the delivery of such termination statements and releases, satisfactions and discharges have been maderequired; and
(xviv) (A) all UCC financing statements certificates evidencing existence and PPSA financing statementsgood standing of each Loan Party, required by Law or reasonably requested issued by the Agents or applicable Governmental Authority of the Canadian Agent, as applicable, to be filed, registered or recorded to create, perfect or protect the Liens intended to be created under the Loan Documents, and (B) Credit Card Notifications and Blocked Account Agreements required to be delivered on or prior to the Closing Date pursuant to Section 6.07 hereofstate where each is organized.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing Date, (ii) the payment of all fees and other amounts due to the Credit Parties by the Borrowers on the Closing Date as required under the Loan Documents, (iii) all Letters of Credit to be issued on the Closing Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,000.
(c) The Administrative Agent and the Canadian Agent Lenders shall have received a Borrowing Base Certificate dated the Closing Date, relating to the month ended on June 30, 2009, and executed by a Responsible Officer of the Lead Borrower or the Parent.
(d) The Co-Collateral Agents shall be reasonably satisfied with the results of the inventory appraisal conducted by Great American Group dated April, 2009.
(e) The Administrative Agent shall have received, (i) and the Agents shall be reasonably satisfied with a Consolidated balance sheet of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30, 2009, and the related Consolidated statements of income or operations, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practices.
(f) The Lead Borrower or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtained.
(i) All fees required to be paid by the Borrowers to any of the Agents or the Arrangers on or before the Closing Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Date shall have been paid in full.
(j) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels to the Agents and Arrangers to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(k) The Agents shall have received all documentation and other information as may be required by regulatory authorities under them in order to enable compliance with applicable “know your customer” and anti-money laundering rules and regulations includingregulations, without limitation, including the Patriot Act.
(l) Since June 8, 2009, no material changes information required by the USA PATRIOT Act and information described in governmental regulations or policies affecting any Loan Party or any Credit Party shall have occurred prior to the Closing Date.
(m) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding on the Loan PartiesSection 11.19. Without limiting the generality of the provisions of the last paragraph of Section 9.029.03, for purposes of determining compliance with the conditions specified in this Section 04.01, each Lender (other than an Agent or the Canadian Agent) that has signed this Agreement shall be deemed to have Consented consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be Consented 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 Execution Date specifying its objection thereto. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, 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 respects as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or shall notify the Canadian AgentLenders and the Borrower of the Execution Date, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by the Lead Borrower or the Canadian Borrower, as applicable, and such notice shall be deemed to be a representation conclusive and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to complybinding.
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Conditions Precedent to Credit Extensions. Conditions 4. 01Conditions of Initial Credit Extensionthis Agreement on the Fourth Restatement Date . The obligation effectiveness of this Agreement on the L/C Issuer and each Lender to make its initial Credit Extension hereunder is Fourth Restatement Date was subject to satisfaction of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or originals, telecopies or other electronic image scan transmission (e.g., “pdf” or “tiftif ” via e-mail) (followed promptly by originals) unless otherwise specified, each dated the Fourth Restatement Date (or, in the case DB1/ 133985272.1133985272.4 of certificates of governmental officials, a recent date before the Fourth Restatement Date) and each in form and substance reasonably satisfactory to the Agent:
(i) counterparts of this Agreement each properly executed by a Responsible Officer of the signing Loan Party (if applicable):
(i) executed counterparts of this Agreementand the Lenders sufficient in number for distribution to the Agent, each Lender and the Lead Borrower;
(ii) a Note executed by each applicable Borrower the Borrowers in favor of each Revolving Loan 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 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 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 become a party;
(iv) copies of each Loan Party’s certificate or articles of incorporation Organization Documents and bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction) and a certificate of good standing (where applicable, or such other customary functionally equivalent certificatesdocuments and certifications as the 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 the extent available engage in the applicable jurisdiction) from such Loan Party’s jurisdiction of organization and from business in each jurisdiction where such Loan Party’s its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to so qualify in such jurisdiction could not reasonably be expected to have a Material Adverse Effect;
(v) a favorable opinion of (x) Skadden, Arps, Slate, Xxxxxxxx Xxxxxxx & Xxxx LLP, special counsel to the Domestic Loan Parties, addressed to the Administrative Agent and each Domestic Lender, as to customary such matters concerning the Domestic Loan Parties and the Loan Documents; and (y) Fraser Xxxxxx Casgrain LLP and XxXxxxx Xxxxxx LLP, counsels to Documents as the Canadian Loan Parties, addressed to the Canadian Agent and each Canadian Lender, as to customary matters concerning the Canadian Loan Parties and the Loan Documentsmay reasonably request;
(vi) a certificate signed by of a Responsible Officer of the Lead Borrower, satisfactory in form and substance to the Agents, Borrower certifying (A) that the conditions specified in Sections ARTICLE IV(o) 4.01 and (p) 4.02 have been satisfied, (B) that there has been no event or circumstance since the date of the Fourth Restatement Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; provided, however, none of the Material Adverse Effect Exceptions shall be deemed to be a Material Adverse Effect, (C) to the Solvency of the Loan Parties as of the Fourth 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 any 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, (C) that, as of the Closing Date after giving effect to the transactions contemplated hereby, the Loan Parties on a consolidated basis are Solvent, and (D) that this Agreement and all Obligations satisfy the requirements of section 3.3 of the Senior Note Indenture;
(vii) intentionally omitted;
(viii) except as set forth in the post-Closing Letter, evidence that all insurance required to be maintained pursuant to the Loan Documents and all endorsements in favor of the Administrative Agent or the Canadian Agent, as applicable, required under the Loan Documents have been obtained and are in effect;
(ix) a payoff letter from the agent for the lenders under the Existing Credit Agreement reasonably satisfactory in form and substance to the Agents 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 (except to the extent expressly set forth therein), and all Liens securing obligations under the Existing Credit Agreement have been, or concurrently with the Closing Date are being, released;
(xviii) the Security Documents set forth on Schedule 4.01(a)(x) hereto and copies of certificates evidencing any stock being pledged under the Pledge Agreement on the Closing Date (to the extent required by the Pledge Agreement)thereunder, together with copies of undated stock powers executed in blank, each duly executed by the applicable Loan Parties (originals of which are being delivered to the US Term Loan Agent subject to the Intercreditor Agreement);Parties; DB1/ 133985272.1133985272.4
(xiix) all other Loan Documents set forth on Schedule 4.01(a)(xi4.01(a)(ix) hereto, each duly executed by the applicable Loan Parties;
(xii) the Intercreditor Agreement;
(A) a written report regarding the results of a commercial finance examination of the Loan Parties, which shall be reasonably satisfactory to the Co-Collateral Agents and (B) background checks on the Parent, the Loan Parties and their management reasonably requested by any Agent, in each case with results reasonably satisfactory to the Agents;
(xivx) results of searches or other evidence reasonably satisfactory to the Co-Collateral Agents Agent (in each case dated as of a date reasonably satisfactory to the Co-Collateral AgentsAgent) indicating the absence of Liens on the assets of the Loan Parties, except for Permitted Encumbrances and Liens for which termination statements and releases satisfactory to the Agent are being tendered concurrently with the initial such extension of credit hereunder or other arrangements reasonably satisfactory to the Co-Collateral Agents Agent for the delivery of such termination statements and releases, satisfactions and discharges have been made; and;
(xv) (Axi) all UCC financing statements documents and PPSA instruments, including Uniform Commercial Code financing statements, required by Law law or reasonably requested by the Agents or the Canadian Agent, as applicable, Agent to be filed, registered or recorded to create, create or perfect or protect the first priority Liens intended to be created under the Loan Documents;
(xii) the items set forth in clauses (d) through (k) of the definition of Eligible Real Estate, and as applicable; and
(Bxiii) Credit Card Notifications and Blocked Account Agreements required to be delivered on such other assurances, certificates, documents, consents or prior to opinions as the Closing Date pursuant to Section 6.07 hereofAgent reasonably may require.
(b) After giving effect to (i) the first funding under the Loans (if any) on the Closing DateLoans, (ii) the payment of all fees and other amounts due any charges to the Credit Parties by the Borrowers Loan Account on the Closing Fourth Restatement Date as required under by the Loan Documents, Documents and (iii) all Letters of Credit to be issued on at, or immediately subsequent to, the Closing Fourth Restatement Date, and (iv) the pay off of obligations under the Existing Credit Agreement on the Closing Date, and with the Loan Parties’ trade payables being paid currently and the Loan Parties’ expenses and liabilities being paid in the ordinary course of business and without acceleration of sales, Domestic Excess Availability shall be not less than $80,000,000 and Canadian Availability shall not be less than $10,000,00075,000,000.
(c) The Administrative Agent and the Canadian Agent shall have received a Borrowing Base Certificate dated the Closing Fourth Restatement Date, relating to the month ended on June 30February 28, 20092019, and executed by a Responsible Officer of the Lead Borrower or the ParentBorrower.
(d) The Co-Collateral Agents Agent shall be reasonably satisfied with the results that any financial statements of the inventory appraisal conducted by Great American Group dated AprilLoan Parties 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 Fourth Restatement Audited Financial Statements, 2009it being understood that none of the Material Adverse Effect Exceptions shall be deemed to be violative of this clause (d).
(e) The Administrative Agent There shall have receivednot be any action, suit, investigation or proceeding (iother than as disclosed in Schedule 5.06 and any Material Adverse Effect Exception) and pending or, to the Agents shall be reasonably satisfied with a Consolidated balance sheet knowledge of executive officers of the Parent and its Subsidiaries as at the Fiscal Quarter ended April 30Borrowers, 2009threatened in any court or before any arbitrator or Governmental Authority, and in each case not previously disclosed to the related Consolidated statements of income or operationsAgent, Shareholders’ Equity and cash flows for such Fiscal Quarter and for the portion of the Parent’s Fiscal Year then ended, and (ii) that could reasonably be expected to have a detailed forecast for the period commencing with the Fiscal Quarter ending July 31, 2009 and ending with the end of the Fiscal Quarter ending October 31, 2010, which shall include an Availability model, Americas Consolidated income statement, balance sheet, and statement of cash flow, by month, each prepared in conformity with GAAP (in the case of clause (i)) and consistent with the Loan Parties’ then current practicesMaterial Adverse Effect.
(f) The Lead Borrower Agent shall have received evidence reasonably satisfactory to it that no Loan Party or any Subsidiary shall have entered into the Term Loan Credit Agreements substantially consistent with the term sheet attached to Rhône Capital III L.P.’s commitment letter dated June 8, 2009 relating thereto or otherwise is in form and substance reasonably satisfactory to the Agents and received, or substantially simultaneously with the initial Credit Extension default in any material respect under this Agreement shall receive, gross proceeds of the Term Loans in a minimum amount of $125,000,000any Material Contract.
(g) The Agents shall have received (i) the Intercreditor Agreement duly executed by all parties thereto and (ii) copies consummation of all material documents and agreements duly executed by all parties thereto with respect to the Term Loans and such agreements described in this clause (ii) shall be substantially consistent with the term sheet dated June 8, 2009 relating thereto or otherwise in form and substance reasonably acceptable to the Agents.
(h) All necessary consents and approvals to the transactions contemplated hereby shall have been obtainednot violate any Law or any Organization Document.
(ih) All fees required to be paid by to the Borrowers to any of the Agents Agent or the Arrangers on or before the Closing Fourth Restatement Date shall have been paid in full, and all fees required to be paid by the Borrowers to the Lenders on or before the Closing Fourth Restatement Date shall have been paid in full.. DB1/ 133985272.1133985272.4
(ji) The Borrowers shall have paid all reasonable and documented fees, charges and disbursements of counsels counsel to the Agents and Arrangers Agent to the extent payable by the Borrowers hereunder and invoiced prior to or on the Closing Fourth Restatement Date, plus such additional amounts of such fees, charges and disbursements payable by the Borrowers hereunder as shall constitute such counsels’ reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimates shall not thereafter preclude a final settling of accounts between the Borrowers and any Agent or Arranger).
(kj) The Agents At least ten (10) Business Days prior to the Fourth Restatement Date, the Agent and the Lenders shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” ”, beneficial ownership regulations, and anti-money laundering rules and regulations includingregulations, including without limitationlimitation the Act, and including satisfactory regulatory compliance review by the Patriot Agent and the Lenders in respect of the Flood Disaster Protection Act.
(k) Any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have provided, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Borrower.
(l) Since June 8, 2009, 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) intentionally omitted.
(n) The Closing Date shall have occurred on or before July 31, 2009. The Administrative Agent shall notify the Lead Borrower and the Lenders 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 9.02, for purposes of determining compliance with the conditions specified in this Section 0, each Lender (other than an Agent or the Canadian Agent) 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. Conditions to all Credit Extensions. The obligation of each Lender to honor any Request and be satisfied with detailed financial projections and business assumptions for Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan, or a continuation of LIBO Rate Loans or BA Equivalent Loans) and of each L/C Issuer to issue each Letter of Credit is subject to the following conditions precedent:
(o) The representations and warranties of the Borrowers and each other Loan Party contained in Article V or any other Loan Document, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by materiality, in all respects) on and as of the date of such Credit Extension, except to Guarantors on a monthly basis for 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 respects as of such earlier date, and except that for purposes of this Section 0, the representations and warranties contained in subsections (a), (b) and (f) of Section 5.01 shall be deemed to refer to the most recent statements, if any, furnished pursuant to clauses (a), (b) and (d), respectively, of Section 0.
(p) No Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.
(q) The Administrative Agent or the Canadian Agent, if applicable, and, if applicable, the L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for a Credit Extension (other than a Committed Loan Notice requesting only a conversion of a Committed Loan to another Type of Committed Loan or a continuation of LIBO Rate Loans or BA Equivalent Loans) submitted by period through the Lead Borrower or the Canadian Borrower’s Fiscal Year ending December 31, as applicable2020, shall be deemed to be including a representation consolidated income statement, balance sheet, statement of cash flow and warranty by the Domestic Borrowers or the Canadian Borrower, as applicable, that the conditions specified in Sections ARTICLE IV(o) and (p) have been satisfied on and as of the date of the applicable Credit Extension. The conditions set forth in this Section 0 are for the sole benefit of the Credit Parties but unless and until the Required Lenders otherwise direct the Administrative Agent and the Canadian Agent (in accordance with the terms of this Agreement) to cease making Committed Loans, the Lenders will fund their Applicable Percentage of all Loans that are requested by the Lead Borrower or the Canadian Borrower, as applicable, of all L/C Advances required to be made hereunder and participate in all Swing Line Loans and Letters of Credit whenever made or issued in accordance with the provisions of this Agreement, and which, notwithstanding the failure of the Loan Parties to comply with the provisions of this Article IV, are agreed to by the Administrative Agent or the Canadian Agent, as applicable; provided that, the making of any such Loans or the issuance of any Letters of Credit in the event the provisions of this Article IV are not complied with shall not be deemed to be a modification or waiver by any Credit Party of the provisions of this Article IV on any future occasion or a waiver of any rights of the Credit Parties as a result of any such failure to complyborrowing base availability analysis.
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