CONDITIONS TO BORROWINGS. The obligation of each Lender to make the Loans is subject to the following conditions precedent on or before the Availability End Date: (a) The Administrative Agent shall have received a Request for Borrowing in accordance with the requirements hereof. (b) If the applicable Borrower is the Designated Borrower, then the conditions of Section 2.12 to the designation of such Borrower as the Designated Borrower shall have been met to the reasonable satisfaction of the Administrative Agent and each Lender shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act, that has been reasonably requested by such Lender not less than ten Business Days prior to the Closing Date. (c) Notwithstanding anything to the contrary in Article V, the only representations and warranties the accuracy of which shall be a condition to the Closing Date are the following: (i) such representations and warranties made by the Target in the Acquisition Agreement as are material to the interests of the Arrangers and the Lenders, but only to the extent that the Company (or any of its affiliates) has the right to terminate its obligations under the Acquisition Agreement (or to refuse to consummate the Acquisition) as a result of a breach of such representations in the Acquisition Agreement (determined without regard to whether any notice is required to be delivered by the Company) and (ii) each of the representations and warranties of the Loan Parties contained in Section 5.01(a) (with respect to the Borrowers only), Section 5.01(b)(ii), 5.02(a), 5.04, 5.12, and 5.17; (d) At least 10 days prior to the Closing Date, the Arrangers shall have received (a) audited consolidated balance sheets and related statements of income (or, in the case of Target, consolidated statements of operations and comprehensive income), shareholders’ equity (or, in the case of the Target, stockholders’ equity) and cash flows for the Target and the Company for the fiscal years ended December 31, 2010, 2011, 2012 and (in the event that the Closing Date occurs on a date that is more than 90 days following December 31, 2013) 2013, and (b) unaudited consolidated balance sheets and related statements of income (in the case of the Target, statements of operations and comprehensive income), shareholders’ equity (in the case of the Company) and cash flows for the Target and the Company for the fiscal quarter ended March 31, 2013 and each subsequent fiscal quarter ended on a date that is not a fiscal year end and that is at least 45 days before the Closing Date, in each case prepared in accordance with GAAP. The Company’s or the Target’s, as applicable, filing of any (a) required audited financial statements with respect to the Company or the Target, as applicable, on Form 10-K or (b) required unaudited financial statements with respect to the Company or the Target, as applicable, on Form 10-Q, in each case, will satisfy the requirements under clauses (a) or (b), as applicable, of this paragraph. The Arrangers hereby acknowledges that they have received each of the financial statements for the fiscal years ended December 31, 2010, 2011 and 2012 described in clause (a) of the first sentence of this clause (ii). (e) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower confirming, as of the Closing Date, the satisfaction (unless waived by the Required Lenders) of the conditions specified in Section 4.02(c), (f), (g) and (h). (a) Except as (i) set forth in the disclosure letter delivered by the Company (as defined in the Acquisition Agreement) to Parent (as defined in the Acquisition Agreement) on the date of the Acquisition Agreement (the “Company Disclosure Letter”) (it being understood that any information set forth in one section or subsection of the Company Disclosure Letter shall be deemed to apply to and qualify the section or subsection of the Acquisition Agreement to which it corresponds and each other section or subsection of the Acquisition Agreement to the extent that it is reasonably apparent that such information is relevant to such other section or subsection) or (ii) disclosed in the Company SEC Documents (as defined in the Acquisition Agreement) or any other report, schedule, form, statement or other document (including exhibits and other information incorporated therein) filed with, or furnished to, the SEC (as defined in the Acquisition Agreement) after January 1, 2010 and publicly available prior to the date of the Acquisition Agreement, other than any risk factor disclosures contained in the “Risk Factors” section thereof or other similarly cautionary or predictive statements therein, from December 31, 2012, through the date of the Acquisition Agreement, there shall not have been any Target Material Adverse Effect. (g) Since the date of the Acquisition Agreement, there shall not have been any effect, change, event or circumstance or occurrence that has had or would reasonably be expected to have a Target Material Adverse Effect. (h) The Administrative Agent shall have received reasonably satisfactory evidence (which may be provided by a certificate of a Responsible Officer of the Company) that the Acquisition has been consummated (or shall be consummated substantially concurrently with the making of the Loans on the Closing Date) in accordance with the terms of the Acquisition Agreement; provided that no amendment, modification or waiver of any term thereof or any condition to the Company’s obligation to consummate the Acquisition thereunder or consent granted thereunder will be made or granted, as the case may be, without the prior written consent (which consent shall not be unreasonably withheld or delayed) of the Arrangers (other than any such amendment, modification or waiver or consent that is not materially adverse to any interest of the Arrangers or the Lenders, it being understood that any (i) increase in the purchase price (other than an increase composed entirely of equity (or the proceeds of equity) of the Company) or (ii) any decrease of more than 10% of the purchase price, in each case, will require the consent of the Arrangers, which consent shall not be unreasonably withheld or delayed, with any decrease of the purchase price (including any decrease of less than 10% of the purchase price) to be allocated ratably to reduce (x) any bridge or permanent financing for the Acquisition and (y) the requirement of cash in hand intended to be used to finance the Acquisition (unless the Arrangers consent to an alternative allocation)). (i) There shall be no outstanding loans under the Existing Credit Agreement the proceeds of which are used to finance the Acquisition unless the Aggregate Commitments under this Agreement have been utilized in full. (j) The Lenders, the Administrative Agent and the Arranger shall have received all fees required pursuant to the terms hereof to be paid, and all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before the Closing Date, including fees and expenses and other compensation contemplated by the Fee Letters. All such amounts may be paid with proceeds of Loans made on the Closing Date and, to the extent so funded, will be reflected in the funding instructions given by the Company to the Administrative Agent on or before the Closing Date. Without duplication of the foregoing, unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced three days prior to the Closing Date. (k) The Administrative Agent shall have received a Note executed by the applicable Borrower in favor of each Lender requesting a Note.
Appears in 1 contract
Samples: Term Loan Agreement (Thermo Fisher Scientific Inc.)
CONDITIONS TO BORROWINGS. SECTION 4.01. Conditions to Initial Borrowing and issuance of any Letter of Credit . The obligation of each Lender to make a Loan or any Issuer to issue a Letter of Credit on the Loans occasion of the initial Borrowing or issuance of a Letter of Credit is subject to the satisfaction of the conditions set forth in Section 4.02 and receipt by the Administrative Agent or the Collateral Agent of the following conditions precedent on or before (as to the Availability End Date:documents described in paragraphs (a), (c), (d) and (e) below, in sufficient number of counterparts for delivery of a counterpart to each Lender and retention of one counterpart by the Administrative Agent):
(a) The from each of the parties hereto of either (i) a duly executed counterpart of this Agreement signed by such party or (ii) a facsimile transmission of such executed counterpart, with the original to be sent to the Administrative Agent shall have received a Request for Borrowing in accordance with the requirements hereof.by overnight courier;
(b) If a duly executed Syndicated Loan Note for the applicable Borrower is account of each Lender and a duly executed Swing Loan Note for the Designated Borroweraccount of Wachovia, then in each case complying with the conditions provisions of Section 2.12 2.05;
(c) an opinion letter (i) (together with any opinions of local counsel relied on therein) of Xxxxxxx Xxxxxxxx, X.X., counsel for the Borrowers, dated as of the Closing Date, substantially in the form of Exhibit B-1 and covering such additional matters relating to the designation of such Borrower transactions contemplated hereby as the Designated Borrower shall have been met Administrative Agent, the Collateral Agent, or any Lender may reasonably request, including, without limitation, opinions as to the reasonable satisfaction perfection of the security interests in the Collateral granted to the Collateral Agent or Administrative Agent pursuant to the Collateral Documents, (ii) of local counsel to the Borrowers in the State of Ohio dated as of the Closing Date, substantially in the form of Exhibit B-2, regarding the Mortgage as to any Real Property located in the such state, and (iii) of FAA counsel to the Administrative Agent and the Collateral Agent dated as of the Closing Date, substantially in the form of Exhibit B-3, regarding the Collateral Agent's security interest in the Collateral described in the Aircraft Chattel Mortgages;
(d) an opinion of Xxxxx, Day, Xxxxxx & Xxxxx, special counsel for the Administrative Agent and Collateral Agent, dated as of the Closing Date, substantially in the form of Exhibit C and covering such additional matters relating to the transactions contemplated hereby as the Administrative Agent and Collateral Agent may reasonably request;
(e) a certificate (the "Closing Certificate") substantially in the form of Exhibit H, dated as of the Closing Date, signed by a Senior Officer of the Parent and each of the Borrowers, to the effect that (i) immediately prior to the consummation of this Agreement, no "Default" or "Event of Default" had occurred and was continuing under that certain Credit Agreement dated as of July 27, 2000, by and among Airborne Freight Corporation, the "Lenders" party thereto, and Wachovia, in its capacity as Administrative Agent (as amended); (ii) immediately after the consummation of this Agreement, no Default or Event of Default has occurred under this Agreement; and (iii) the representations and warranties of the Parent and the Borrowers contained in Article 5 are true on and as of the Closing Date; and (iv) Liquidity on the Closing Date is equal to or greater than $75,000,000;
(f) all documents which the Administrative Agent, the Collateral Agent, or any Lender shall have received may reasonably request relating to the existence of the Parent and each of the Subsidiaries, the corporate authority for and the validity of this Agreement and the Notes, and any other matters relevant hereto, all documentation in form and substance satisfactory to the Administrative Agent, including, without limitation, a certificate of the Parent and each Subsidiary which is party to any Loan Document substantially in the form of Exhibit I (each, an "Officer's Certificate"), signed by the Secretary or an Assistant Secretary of such Person, certifying as to the names, true signatures and incumbency of the officer or officers of such Person authorized to execute and deliver those Loan Documents to which such Person is a party, and certified copies of the following items: (i) such Person's Certificate of Incorporation, (ii) such Person's Bylaws, (iii) a certificate of good standing or valid existence of the Secretary of State of the State of the jurisdiction of its incorporation and of each State in which it is qualified to do business as a foreign corporation, and (iv) the action taken by the Board of Directors of each such Person authorizing such Person's execution, delivery and performance of this Agreement, the Notes and the other information required Loan Documents to which such Person is a party;
(g) an initial Borrowing Base Certificate dated as of the Closing Date;
(h) two duly executed counterparts of each of the Contribution Agreement, the Parent Guaranty, and each Subsidiary Guaranty (to be executed by regulatory authorities under applicable “know your customer” each of the Domestic Subsidiaries other than the Receivables Subsidiary and anti-money laundering rules and regulationsany Aircraft Financing Subsidiary);
(i) fully executed counterparts of the Collateral Documents, including, without limitation, the Patriot Act, that has been reasonably requested by such Lender not less than ten Business Days prior to the Closing Date.
(c) Notwithstanding anything to the contrary in Article V, the only representations and warranties the accuracy of which shall be a condition to the Closing Date are the following: (i) such representations and warranties made delivery by the Target in the Acquisition Agreement as are material to the interests of the Arrangers and the Lenders, but only to the extent that the Company (or any of its affiliates) has the right to terminate its obligations under the Acquisition Agreement (or to refuse to consummate the Acquisition) as a result of a breach of such representations in the Acquisition Agreement (determined without regard to whether any notice is required to be delivered by the Company) and (ii) each of the representations and warranties of the Loan Parties contained in Section 5.01(a) (with respect to the Borrowers only), Section 5.01(b)(ii), 5.02(a), 5.04, 5.12, and 5.17;
(d) At least 10 days prior to the Closing Date, the Arrangers shall have received (a) audited consolidated balance sheets and related statements of income (or, in the case of Target, consolidated statements of operations and comprehensive income), shareholders’ equity (or, in the case of the Target, stockholders’ equity) and cash flows for the Target and the Company for the fiscal years ended December 31, 2010, 2011, 2012 and (in the event that the Closing Date occurs on a date that is more than 90 days following December 31, 2013) 2013, and (b) unaudited consolidated balance sheets and related statements of income (in the case of the Target, statements of operations and comprehensive income), shareholders’ equity (in the case of the Company) and cash flows for the Target and the Company for the fiscal quarter ended March 31, 2013 Parent and each subsequent fiscal quarter ended on a date that is not a fiscal year end and that is at least 45 days before the Closing Date, in each case prepared in accordance with GAAP. The Company’s or the Target’s, as applicable, filing of any (a) required audited financial statements with respect to the Company or the Target, as applicable, on Form 10-K or (b) required unaudited financial statements with respect to the Company or the Target, as applicable, on Form 10-Q, in each case, will satisfy the requirements under clauses (a) or (b), as applicable, of this paragraph. The Arrangers hereby acknowledges that they have received each of the financial statements for the fiscal years ended December 31, 2010, 2011 and 2012 described in clause (a) of the first sentence of this clause (ii).
(e) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower confirming, as of the Closing Date, the satisfaction (unless waived by the Required Lenders) of the conditions specified in Section 4.02(c), (f), (g) and (h).
(a) Except as (i) set forth in the disclosure letter delivered by the Company (as defined in the Acquisition Agreement) to Parent (as defined in the Acquisition Agreement) on the date of the Acquisition Agreement (the “Company Disclosure Letter”) (it being understood that any information set forth in one section or subsection of the Company Disclosure Letter shall be deemed to apply to and qualify the section or subsection of the Acquisition Agreement to which it corresponds and each other section or subsection of the Acquisition Agreement to the extent that it is reasonably apparent that such information is relevant to such other section or subsection) or (ii) disclosed in the Company SEC Documents (as defined in the Acquisition Agreement) or any other report, schedule, form, statement or other document (including exhibits and other information incorporated therein) filed with, or furnished to, the SEC (as defined in the Acquisition Agreement) after January 1, 2010 and publicly available prior to the date of the Acquisition Agreement, other than any risk factor disclosures contained in the “Risk Factors” section thereof or other similarly cautionary or predictive statements therein, from December 31, 2012, through the date of the Acquisition Agreement, there shall not have been any Target Material Adverse Effect.
(g) Since the date of the Acquisition Agreement, there shall not have been any effect, change, event or circumstance or occurrence that has had or would reasonably be expected to have a Target Material Adverse Effect.
(h) The Administrative Agent shall have received reasonably satisfactory evidence (which may be provided by a certificate of a Responsible Officer of the Company) that the Acquisition has been consummated (or shall be consummated substantially concurrently with the making of the Loans on the Closing Date) in accordance with the terms of the Acquisition Agreement; provided that no amendment, modification or waiver of any term thereof or any condition to the Company’s obligation to consummate the Acquisition thereunder or consent granted thereunder will be made or granted, as the case may be, without the prior written consent (which consent shall not be unreasonably withheld or delayed) of the Arrangers Domestic Subsidiary (other than any Receivables Subsidiary and any Aircraft Financing Subsidiary) of a Security Agreement, Aircraft Chattel Mortgage, Pledge Agreement, Mortgage, Trademark Security Agreement, and Collateral Assignment of Material Contracts, to the extent the Parent or such amendment, modification Domestic Subsidiary has any right or waiver or consent that is not materially adverse title to any interest of the Arrangers types of Collateral described in such Collateral Documents or as may be required by the Administrative Agent or the Lenders, it being understood that any (i) increase in the purchase price (other than an increase composed entirely of equity (or the proceeds of equity) of the Company) or (ii) any decrease of more than 10% of the purchase price, in each case, will require the consent of the Arrangers, which consent shall not be unreasonably withheld or delayed, with any decrease of the purchase price (including any decrease of less than 10% of the purchase price) to be allocated ratably to reduce (x) any bridge or permanent financing for the Acquisition and (y) the requirement of cash in hand intended to be used to finance the Acquisition (unless the Arrangers consent to an alternative allocation)).
(i) There shall be no outstanding loans under the Existing Credit Agreement the proceeds of which are used to finance the Acquisition unless the Aggregate Commitments under this Agreement have been utilized in full.Collateral Agent;
(j) The Lenders, Real Property Documentation for each parcel of the Real Properties;
(k) receipt of confirmations of appraisals pertaining to any equipment which constitutes Collateral reasonably acceptable to the Administrative Agent;
(l) receipt of lien searches reasonably acceptable to the Administrative Agent and the Arranger shall have received Collateral Agent, showing no Liens on any Collateral other than Permitted Encumbrances;
(m) evidence of insurance as required by this Agreement and any of the Collateral Documents;
(n) payment of all fees fees, including, without limitation, the Facility Fee and the amendment and restatement fee required pursuant to the terms hereof to be paidby Section 2.08, and all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before the Closing Date, including fees and expenses and other compensation contemplated by the Fee Letters. All such amounts may be paid with proceeds of Loans made on the Closing Date and, to the extent so funded, will be reflected in the funding instructions given by the Company owed to the Administrative Agent and the Lenders hereunder; and
(o) a Notice of Borrowing or Notice of Continuation or Conversion if any Borrowing or issuance of any Letter of Credit is to occur on or before the Closing Date. Without duplication of the foregoing, unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced three days prior to the Closing Date.
(k) The Administrative Agent shall have received a Note executed by the applicable Borrower in favor of each Lender requesting a Note.
Appears in 1 contract
Samples: Credit Agreement (Airborne Inc /De/)
CONDITIONS TO BORROWINGS. The obligation of each Lender to make the Loans is subject solely to the satisfaction (or waiver pursuant to Section 10.01) of the following conditions precedent on or before the Availability End DateNovember 19, 2011:
(a) The the Administrative Agent shall have received a Request for Borrowing Loan Notice in accordance with the requirements hereof.of Article II;
(b) If the applicable Borrower is the Designated Borrower, then the conditions of Section 2.12 to the designation of such Borrower as the Designated Borrower following representations and warranties shall have been met to the reasonable satisfaction of the Administrative Agent and each Lender shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act, that has been reasonably requested by such Lender not less than ten Business Days prior to be accurate on the Closing Date.
(c) Notwithstanding anything to the contrary in Article V, the only representations and warranties the accuracy of which shall be a condition to the Closing Date are the following: (i) such representations and warranties made by the Target in the Acquisition Agreement as are material to the interests of the Arrangers Arranger and the Lenders, but only to the extent that the Company (or any of its affiliates) Borrower has the right to terminate its obligations under the Acquisition Agreement (or to refuse to consummate the Acquisition) as a result of a breach of such representations in the Acquisition Agreement (determined without regard to whether any notice is required to be delivered by the CompanyBorrower) and (ii) each of the representations and warranties of the Loan Parties contained in Section 5.01(a) (with respect to the Borrowers Borrower only), Section 5.01(b)(ii), 5.02(a), 5.04, 5.12, and 5.17;
5.13 (d) At least 10 days prior to the Closing Date, the Arrangers shall have received (a) audited consolidated balance sheets and related statements of income (or, in the case of Target, consolidated statements of operations and comprehensive income), shareholders’ equity (or, in the case of the Target, stockholders’ equity) and cash flows for the Target and the Company for the fiscal years ended December 31, 2010, 2011, 2012 and (in the event that the Closing Date occurs on a date that is more than 90 days following December 31, 2013) 2013, and (b) unaudited consolidated balance sheets and related statements of income (in the case of the Target, statements of operations and comprehensive income), shareholders’ equity (in the case of the Company) and cash flows for the Target and the Company for the fiscal quarter ended March 31, 2013 and each subsequent fiscal quarter ended on a date that is not a fiscal year end and that is at least 45 days before the Closing Date, in each case prepared in accordance with GAAP. The Company’s or the Target’s, as applicable, filing of any (a) required audited financial statements but only with respect to the Company or the Target, as applicable, Borrower’s Annual Report on Form 10-K or (b) required unaudited financial statements with respect to the Company or the Target, as applicable, on Form 10-Q, in each case, will satisfy the requirements under clauses (a) or (b), as applicable, of this paragraph. The Arrangers hereby acknowledges that they have received each of the financial statements for the fiscal years year ended December 31, 20102010 and the Borrower’s other filings with the SEC since December 31, 2011 2010 and 2012 described in clause (a) only to the extent that a breach of the first sentence of this clause (iisuch representation would reasonably be expected to have a Material Adverse Effect).;
(ec) The the Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower confirming, as of the Closing Date, the satisfaction (unless waived by the Required Lenders) of the conditions specified in this Section 4.02(c), (f), (g) and (h).4.02;
(ad) Except as (i) set forth in the disclosure letter delivered by the Company (as defined in the Acquisition Agreement) to Parent (as defined in the Acquisition Agreement) on the date of the Acquisition Agreement (the “Company Disclosure Letter”) (it being understood that any information set forth in one section or subsection of the Company Disclosure Letter shall be deemed to apply to and qualify the section or subsection of the Acquisition Agreement to which it corresponds and each other section or subsection of the Acquisition Agreement to the extent that it is reasonably apparent that such information is relevant to such other section or subsection) or (ii) disclosed in the Company SEC Documents (as defined in the Acquisition Agreement) or any other report, schedule, form, statement or other document (including exhibits and other information incorporated therein) filed with, or furnished to, the SEC (as defined in the Acquisition Agreement) after January 1, 2010 and publicly available prior to the date of the Acquisition Agreement, other than any risk factor disclosures contained in the “Risk Factors” section thereof or other similarly cautionary or predictive statements therein, from December 31, 2012, through the date of the Acquisition Agreement, there shall not have been occurred and be continuing any Target Material Adverse Effect.;
(ge) Since the date of the Acquisition Agreement, there shall not have been any effect, change, event or circumstance or occurrence that has had or would reasonably be expected to have a Target Material Adverse Effect.
(h) The Administrative Agent shall have received reasonably satisfactory evidence (which may be provided by a certificate of a Responsible Officer of the CompanyBorrower) that the Acquisition has been consummated (or shall be consummated substantially concurrently with the making of the Loans on the Closing Date) in accordance with the terms of the Acquisition Agreement; provided that provided, that, since the date of the Acquisition Agreement, no amendment, modification or waiver of any term thereof or any condition to the CompanyBorrower’s obligation to consummate the Acquisition thereunder or consent granted thereunder will be made or granted, as the case may be, without the prior written consent (which consent shall not be unreasonably withheld or delayed) of the Arrangers Arranger (other than any such amendment, modification or waiver or consent that is not materially adverse to any interest of the Arrangers Arranger or the Lenders, it being understood that any (iA) increase change in the purchase price (including any price decrease), (B) modification of the structure of the Acquisition resulting in the acquisition of the Target other than an increase composed entirely by purchase of equity the shares of the Target with the Borrower or a direct or indirect wholly-owned Subsidiary thereof or (C) written consent granted by the Borrower to the Target with respect to any act or omission, otherwise prohibited by the Acquisition Agreement in the absence of such written consent, that is or would be reasonably expected to be material and adverse (whether at the time of such consent or at the Closing Date) to any interest of the Arranger or the proceeds of equity) of the Company) or (ii) any decrease of more than 10% of the purchase price, in each case, Lenders will require the consent of the ArrangersArranger, in each case which consent shall not be unreasonably withheld or delayed, with any decrease of the purchase price );
(including any decrease of less than 10% of the purchase price) to be allocated ratably to reduce (x) any bridge or permanent financing for the Acquisition and (yf) the requirement of cash in hand intended to be used to finance the Acquisition (unless the Arrangers consent to an alternative allocation)).
(i) There shall be no outstanding loans under the Existing Credit Agreement the proceeds of which are used to finance the Acquisition unless the Aggregate Commitments under this Agreement have been utilized in full.
(j) The Lenders, the Administrative Agent and the Arranger shall have received all fees required pursuant to the terms hereof to be paid, and all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before the Closing Date, including fees and expenses and other compensation contemplated by the Fee Letters. All such amounts may be paid with proceeds of Loans made on the Closing Date and, to the extent so funded, will be reflected in the funding instructions given by the Company Borrower to the Administrative Agent on or before the Closing Date. Without duplication of the foregoing, unless waived by the Administrative Agent, the Company Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced three days prior to or on the Closing Date.Date plus such additional amounts of such fees, charges and disbursements incurred or to be incurred by it through the Closing Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent); and
(kg) The Administrative Agent shall have received reasonably satisfactory evidence (which may be provided by a Note executed by certificate of a Responsible Officer of the applicable Borrower Borrower) that there shall be no outstanding loans under the Existing Credit Agreement the proceeds of which are used to finance the Acquisition (including any fees and expenses incurred in favor of each Lender requesting a Noteconnection therewith) unless the Aggregate Commitments have been utilized in full.
Appears in 1 contract
CONDITIONS TO BORROWINGS. The obligation availability of each Lender the Term Loans under the Exit Credit Agreement will be subject solely to make the Loans is subject to satisfaction (or waiver) of the following conditions precedent (the date on which such conditions are satisfied (or waived) being the “Effective Date”): · execution and delivery of the Definitive Documentation to be delivered at closing; · delivery of promissory notes to the Lenders, if requested at least two (2) Business Days before the Availability End Effective Date:
; · delivery of board resolutions and organizational documents of the Loan Parties; · delivery of incumbency/specimen signature certificate of the Loan Parties; · delivery of customary legal opinions by counsel to the Borrowers; · there shall not have occurred since the Petition Date any event or condition that has had or would be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect (for purposes of this condition, defined in a manner based on the Prepetition Term Loan Credit Agreement but including a proviso stating that in determining whether a “Material Adverse Effect” has occurred or exists under clause (a) The thereof, the impacts of the chapter 11 cases and of COVID-19 on the assets, business, financial condition or results of operations on the Loan Parties or any of their respective Subsidiaries will be disregarded (provided that this exception shall not apply to the extent that it is materially disproportionately adverse to the Parent Borrower and its Restricted Subsidiaries, taken as a whole, as compared to other companies in the same industry in which the Parent Borrower and its Restricted Subsidiaries operate)); · the Administrative Agent shall have received a Request for Borrowing certificate (in accordance substantially the same form as the corresponding certificate delivered in connection with the requirements hereof.
Prepetition Term Loan Credit Agreement) of the chief financial officer (bor financial officer in a similar role) If of the applicable Borrower is the Designated Parent Borrower, then stating that it and its subsidiaries, taken as a whole, as of the conditions of Section 2.12 Effective Date, are solvent, in each case, after giving effect to the designation consummation of such Borrower as the Designated Borrower Plan; · all fees due to the Administrative Agent, Collateral Agent and Lenders including advisors to the Consenting Stakeholders, Gxxxxxxxx & Co. and Milbank LLP, shall have been met paid (or shall have been caused to be paid), and all expenses to be paid or reimbursed to the reasonable satisfaction of the Administrative Agent, Collateral Agent and each Lender Lenders that have been invoiced at least three (3) Business Days prior to the Effective Date shall have received all been paid (or shall have been caused to be paid); · the Loan Parties shall have provided the documentation and other information to the Administrative Agent that are required by regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including, without limitation, including the Patriot Act, that has been reasonably requested by such Lender not less than ten at least three (3) Business Days prior to the Closing Date.
(c) Notwithstanding anything to the contrary in Article V, the only representations and warranties the accuracy of which shall be a condition to the Closing Effective Date are the following: (i) such representations and warranties made by the Target in the Acquisition Agreement as are material to the interests of the Arrangers and the Lenders, but only to the extent that the Company (or any of its affiliates) has the right such later date agreed to terminate its obligations under the Acquisition Agreement (or to refuse to consummate the Acquisition) as a result of a breach of such representations in the Acquisition Agreement (determined without regard to whether any notice is required to be delivered by the Company) and (ii) each of the representations and warranties of the Loan Parties contained in Section 5.01(a) (with respect to the Borrowers only), Section 5.01(b)(ii), 5.02(a), 5.04, 5.12, and 5.17;
(d) At least 10 days prior to the Closing Date, the Arrangers shall have received (a) audited consolidated balance sheets and related statements of income (or, in the case of Target, consolidated statements of operations and comprehensive income), shareholders’ equity (or, in the case of the Target, stockholders’ equity) and cash flows for the Target and the Company for the fiscal years ended December 31, 2010, 2011, 2012 and (in the event that the Closing Date occurs on a date that is more than 90 days following December 31, 2013) 2013, and (b) unaudited consolidated balance sheets and related statements of income (in the case of the Target, statements of operations and comprehensive income), shareholders’ equity (in the case of the Company) and cash flows for the Target and the Company for the fiscal quarter ended March 31, 2013 and each subsequent fiscal quarter ended on a date that is not a fiscal year end and that is at least 45 days before the Closing Date, in each case prepared in accordance with GAAP. The Company’s or the Target’s, as applicable, filing of any (a) required audited financial statements with respect to the Company or the Target, as applicable, on Form 10-K or (b) required unaudited financial statements with respect to the Company or the Target, as applicable, on Form 10-Q, in each case, will satisfy the requirements under clauses (a) or (b), as applicable, of this paragraph. The Arrangers hereby acknowledges that they have received each of the financial statements for the fiscal years ended December 31, 2010, 2011 and 2012 described in clause (a) of the first sentence of this clause (ii).
(e) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower confirming, as of the Closing Date, the satisfaction (unless waived by the Required Lenders) of the conditions specified in Section 4.02(c), (f), (g) and (h).
(a) Except as (i) set forth in the disclosure letter delivered by the Company (as defined in the Acquisition Agreement) to Parent (as defined in the Acquisition Agreement) on the date of the Acquisition Agreement (the “Company Disclosure Letter”) (it being understood that any information set forth in one section or subsection of the Company Disclosure Letter shall be deemed to apply to and qualify the section or subsection of the Acquisition Agreement to which it corresponds and each other section or subsection of the Acquisition Agreement to the extent that it is reasonably apparent that such information is relevant to such other section or subsection) or (ii) disclosed in the Company SEC Documents (as defined in the Acquisition Agreement) or any other report, schedule, form, statement or other document (including exhibits and other information incorporated therein) filed with, or furnished to, the SEC (as defined in the Acquisition Agreement) after January 1, 2010 and publicly available prior to the date of the Acquisition Agreement, other than any risk factor disclosures contained in the “Risk Factors” section thereof or other similarly cautionary or predictive statements therein, from December 31, 2012, through the date of the Acquisition Agreement, there shall not have been any Target Material Adverse Effect.
(g) Since the date of the Acquisition Agreement, there shall not have been any effect, change, event or circumstance or occurrence that has had or would reasonably be expected to have a Target Material Adverse Effect.
(h) The Administrative Agent shall have received reasonably satisfactory evidence (which may be provided by a certificate of a Responsible Officer of the Company) that the Acquisition has been consummated (or shall be consummated substantially concurrently with the making of the Loans on the Closing Date) in accordance with the terms of the Acquisition Agreement; provided that no amendment, modification or waiver of any term thereof or any condition to the Company’s obligation to consummate the Acquisition thereunder or consent granted thereunder will be made or granted, as the case may be, without the prior written consent (which consent shall not be unreasonably withheld or delayed) of the Arrangers (other than any such amendment, modification or waiver or consent that is not materially adverse to any interest of the Arrangers or the Lenders, it being understood that any (i) increase in the purchase price (other than an increase composed entirely of equity (or the proceeds of equity) of the Company) or (ii) any decrease of more than 10% of the purchase price, in each case, will require the consent of the Arrangers, which consent shall not be unreasonably withheld or delayed, with any decrease of the purchase price (including any decrease of less than 10% of the purchase price) to be allocated ratably to reduce (x) any bridge or permanent financing for the Acquisition and (y) the requirement of cash in hand intended to be used to finance the Acquisition (unless the Arrangers consent to an alternative allocation)).
(i) There shall be no outstanding loans under the Existing Credit Agreement the proceeds of which are used to finance the Acquisition unless the Aggregate Commitments under this Agreement have been utilized in full.
(j) The Lenders, the Administrative Agent and the Arranger shall have received all fees required pursuant to the terms hereof to be paid, and all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before the Closing Date, including fees and expenses and other compensation contemplated by the Fee Letters. All such amounts may be paid with proceeds of Loans made on the Closing Date and, to the extent so funded, will be reflected in the funding instructions given by the Company to the Administrative Agent on or before the Closing Date. Without duplication of the foregoing, unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced three requested ten (10) days prior to the Closing Effective Date.
(k) The Administrative Agent ; · the Bankruptcy Court shall have received a Note executed entered (A) the Confirmation Order and (B) one or more orders authorizing and approving the extensions of credit in respect of the Exit Credit Agreement, each in the amounts and on the terms set forth herein, and all transactions contemplated by the applicable Borrower Exit Credit Agreement, and, in favor each case, such orders shall be in full force and effect and shall not have been stayed, reversed, vacated or otherwise modified; · the Collateral and Guarantee Requirement (excluding certain customary post-closing items to be mutually agreed) shall have been satisfied or waived and the Intercreditor Agreement and the Agreement Among Lenders shall have been executed and delivered and be in full force and effect; · the effective date under the Plan shall have occurred, or contemporaneous with the conversion of the DIP Term Facility to the Term Loan Facility shall occur, and all conditions precedent thereto as set forth therein shall have been satisfied or waived (including (x) the issuance to (i) the holders of DIP Term Facility Claims of 44.9% of the New Common Stock, subject to dilution from the Management Incentive Plan and (ii) the holders of Term Loan Claims of 55.1% of New Common Stock (subject to reduction for New Common Stock distrusted in accordance with the following clause (y)) and (y) each Lender requesting holder of a Note.Term Loan Claim that is a Required Consenting Stakeholder (including through any of its Related Parties) having received its pro rata share of an amount of New Common Stock equal to $7.5 million, in each case shall have occurred substantially contemporaneously with the closing of the Term Loan Facility); · the Pre-Petition ABL Credit Agreement shall have been replaced with a new credit agreement providing asset-based lending facilities for working capital and other general corporate purposes of the Borrowers and its subsidiaries on terms and conditions reasonably acceptable to the Required Consenting Stakeholders (any such credit agreement, the “Exit ABL Credit Agreement”, and the facility in place as of the Effective Date under either the Pre-Petition ABL Credit Agreement or the ABL Credit Agreement, the “Exit ABL Facility”);
Appears in 1 contract
CONDITIONS TO BORROWINGS. The obligation availability of each Lender the Term Loans under the Exit Credit Agreement will be subject solely to make the Loans is subject to satisfaction (or waiver) of the following conditions precedent (the date on which such conditions are satisfied (or waived) being the “Effective Date”): · execution and delivery of the Definitive Documentation to be delivered at closing; · delivery of promissory notes to the Lenders, if requested at least two (2) Business Days before the Availability End Effective Date:
; · delivery of board resolutions and organizational documents of the Loan Parties; · delivery of incumbency/specimen signature certificate of the Loan Parties; · delivery of customary legal opinions by counsel to the Borrowers; · there shall not have occurred since the Petition Date any event or condition that has had or would be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect (for purposes of this condition, defined in a manner based on the Prepetition Term Loan Credit Agreement but including a proviso stating that in determining whether a “Material Adverse Effect” has occurred or exists under clause (a) The thereof, the impacts of the chapter 11 cases and of COVID-19 on the assets, business, financial condition or results of operations on the Loan Parties or any of their respective Subsidiaries will be disregarded (provided that this exception shall not apply to the extent that it is materially disproportionately adverse to the Parent Borrower and its Restricted Subsidiaries, taken as a whole, as compared to other companies in the same industry in which the Parent Borrower and its Restricted Subsidiaries operate)); · the Administrative Agent shall have received a Request for Borrowing certificate (in accordance substantially the same form as the corresponding certificate delivered in connection with the requirements hereof.
Prepetition Term Loan Credit Agreement) of the chief financial officer (bor financial officer in a similar role) If of the applicable Borrower is the Designated Parent Borrower, then stating that it and its subsidiaries, taken as a whole, as of the conditions of Section 2.12 Effective Date, are solvent, in each case, after giving effect to the designation consummation of such Borrower as the Designated Borrower Plan; · all fees due to the Administrative Agent, Collateral Agent and Lenders including advisors to the Consenting Stakeholders, Gxxxxxxxx & Co. and Milbank LLP, shall have been met paid (or shall have been caused to be paid), and all expenses to be paid or reimbursed to the reasonable satisfaction of the Administrative Agent, Collateral Agent and each Lender Lenders that have been invoiced at least three (3) Business Days prior to the Effective Date shall have received all been paid (or shall have been caused to be paid); · the Loan Parties shall have provided the documentation and other information to the Administrative Agent that are required by regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including, without limitation, including the Patriot Act, that has been reasonably requested by such Lender not less than ten at least three (3) Business Days prior to the Closing Date.
(c) Notwithstanding anything to the contrary in Article V, the only representations and warranties the accuracy of which shall be a condition to the Closing Effective Date are the following: (i) such representations and warranties made by the Target in the Acquisition Agreement as are material to the interests of the Arrangers and the Lenders, but only to the extent that the Company (or any of its affiliates) has the right such later date agreed to terminate its obligations under the Acquisition Agreement (or to refuse to consummate the Acquisition) as a result of a breach of such representations in the Acquisition Agreement (determined without regard to whether any notice is required to be delivered by the Company) and (ii) each of the representations and warranties of the Loan Parties contained in Section 5.01(a) (with respect to the Borrowers only), Section 5.01(b)(ii), 5.02(a), 5.04, 5.12, and 5.17;
(d) At least 10 days prior to the Closing Date, the Arrangers shall have received (a) audited consolidated balance sheets and related statements of income (or, in the case of Target, consolidated statements of operations and comprehensive income), shareholders’ equity (or, in the case of the Target, stockholders’ equity) and cash flows for the Target and the Company for the fiscal years ended December 31, 2010, 2011, 2012 and (in the event that the Closing Date occurs on a date that is more than 90 days following December 31, 2013) 2013, and (b) unaudited consolidated balance sheets and related statements of income (in the case of the Target, statements of operations and comprehensive income), shareholders’ equity (in the case of the Company) and cash flows for the Target and the Company for the fiscal quarter ended March 31, 2013 and each subsequent fiscal quarter ended on a date that is not a fiscal year end and that is at least 45 days before the Closing Date, in each case prepared in accordance with GAAP. The Company’s or the Target’s, as applicable, filing of any (a) required audited financial statements with respect to the Company or the Target, as applicable, on Form 10-K or (b) required unaudited financial statements with respect to the Company or the Target, as applicable, on Form 10-Q, in each case, will satisfy the requirements under clauses (a) or (b), as applicable, of this paragraph. The Arrangers hereby acknowledges that they have received each of the financial statements for the fiscal years ended December 31, 2010, 2011 and 2012 described in clause (a) of the first sentence of this clause (ii).
(e) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower confirming, as of the Closing Date, the satisfaction (unless waived by the Required Lenders) of the conditions specified in Section 4.02(c), (f), (g) and (h).
(a) Except as (i) set forth in the disclosure letter delivered by the Company (as defined in the Acquisition Agreement) to Parent (as defined in the Acquisition Agreement) on the date of the Acquisition Agreement (the “Company Disclosure Letter”) (it being understood that any information set forth in one section or subsection of the Company Disclosure Letter shall be deemed to apply to and qualify the section or subsection of the Acquisition Agreement to which it corresponds and each other section or subsection of the Acquisition Agreement to the extent that it is reasonably apparent that such information is relevant to such other section or subsection) or (ii) disclosed in the Company SEC Documents (as defined in the Acquisition Agreement) or any other report, schedule, form, statement or other document (including exhibits and other information incorporated therein) filed with, or furnished to, the SEC (as defined in the Acquisition Agreement) after January 1, 2010 and publicly available prior to the date of the Acquisition Agreement, other than any risk factor disclosures contained in the “Risk Factors” section thereof or other similarly cautionary or predictive statements therein, from December 31, 2012, through the date of the Acquisition Agreement, there shall not have been any Target Material Adverse Effect.
(g) Since the date of the Acquisition Agreement, there shall not have been any effect, change, event or circumstance or occurrence that has had or would reasonably be expected to have a Target Material Adverse Effect.
(h) The Administrative Agent shall have received reasonably satisfactory evidence (which may be provided by a certificate of a Responsible Officer of the Company) that the Acquisition has been consummated (or shall be consummated substantially concurrently with the making of the Loans on the Closing Date) in accordance with the terms of the Acquisition Agreement; provided that no amendment, modification or waiver of any term thereof or any condition to the Company’s obligation to consummate the Acquisition thereunder or consent granted thereunder will be made or granted, as the case may be, without the prior written consent (which consent shall not be unreasonably withheld or delayed) of the Arrangers (other than any such amendment, modification or waiver or consent that is not materially adverse to any interest of the Arrangers or the Lenders, it being understood that any (i) increase in the purchase price (other than an increase composed entirely of equity (or the proceeds of equity) of the Company) or (ii) any decrease of more than 10% of the purchase price, in each case, will require the consent of the Arrangers, which consent shall not be unreasonably withheld or delayed, with any decrease of the purchase price (including any decrease of less than 10% of the purchase price) to be allocated ratably to reduce (x) any bridge or permanent financing for the Acquisition and (y) the requirement of cash in hand intended to be used to finance the Acquisition (unless the Arrangers consent to an alternative allocation)).
(i) There shall be no outstanding loans under the Existing Credit Agreement the proceeds of which are used to finance the Acquisition unless the Aggregate Commitments under this Agreement have been utilized in full.
(j) The Lenders, the Administrative Agent and the Arranger shall have received all fees required pursuant to the terms hereof to be paid, and all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before the Closing Date, including fees and expenses and other compensation contemplated by the Fee Letters. All such amounts may be paid with proceeds of Loans made on the Closing Date and, to the extent so funded, will be reflected in the funding instructions given by the Company to the Administrative Agent on or before the Closing Date. Without duplication of the foregoing, unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced three requested ten (10) days prior to the Closing Effective Date.
(k) The Administrative Agent ; · the Bankruptcy Court shall have received a Note executed entered (A) the Confirmation Order and (B) one or more orders authorizing and approving the extensions of credit in respect of the Exit Credit Agreement, each in the amounts and on the terms set forth herein, and all transactions contemplated by the applicable Borrower Exit Credit Agreement, and, in favor each case, such orders shall be in full force and effect and shall not have been stayed, reversed, vacated or otherwise modified; · the Collateral and Guarantee Requirement (excluding certain customary post-closing items to be mutually agreed) shall have been satisfied or waived and the Intercreditor Agreement and the Agreement Among Lenders shall have been executed and delivered and be in full force and effect; · the effective date under the Plan shall have occurred, or contemporaneous with the conversion of the DIP Term Facility to the Term Loan Facility shall occur, and all conditions precedent thereto as set forth therein shall have been satisfied or waived (including (x) the issuance to (i) the holders of DIP Term Facility Claims of 44.9% of the New Common Stock, subject to dilution from the Management Incentive Plan and (ii) the holders of Term Loan Claims of 55.1% of New Common Stock (subject to reduction for New Common Stock distrusted in accordance with the following clause (y)) and (y) each Lender requesting holder of a Note.Term Loan Claim that is a Required Consenting Stakeholder (including through any of its Related Parties) having received its pro rata share of an amount of New Common Stock equal to $7.5 million, in each case shall have occurred substantially contemporaneously with the closing of the Term Loan Facility);
Appears in 1 contract
Samples: Restructuring Support Agreement (Ascena Retail Group, Inc.)
CONDITIONS TO BORROWINGS. The obligation availability of each Lender the Term Loans under the Exit Credit Agreement will be subject solely to make the Loans is subject to satisfaction (or waiver) of the following conditions precedent (the date on which such conditions are satisfied (or waived) being the “Effective Date”): · execution and delivery of the Definitive Documentation to be delivered at closing; · delivery of promissory notes to the Lenders, if requested at least two (2) Business Days before the Availability End Effective Date:
; · delivery of board resolutions and organizational documents of the Loan Parties; · delivery of incumbency/specimen signature certificate of the Loan Parties; · delivery of customary legal opinions by counsel to the Borrowers; · there shall not have occurred since the Petition Date any event or condition that has had or would be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect (for purposes of this condition, defined in a manner based on the Prepetition Term Loan Credit Agreement but including a proviso stating that in determining whether a “Material Adverse Effect” has occurred or exists under clause (a) The thereof, the impacts of the chapter 11 cases and of COVID-19 on the assets, business, financial condition or results of operations on the Loan Parties or any of their respective Subsidiaries will be disregarded (provided that this exception shall not apply to the extent that it is materially disproportionately adverse to the Parent Borrower and its Restricted Subsidiaries, taken as a whole, as compared to other companies in the same industry in which the Parent Borrower and its Restricted Subsidiaries operate)); · the Administrative Agent shall have received a Request for Borrowing certificate (in accordance substantially the same form as the corresponding certificate delivered in connection with the requirements hereof.
Prepetition Term Loan Credit Agreement) of the chief financial officer (bor financial officer in a similar role) If of the applicable Borrower is the Designated Parent Borrower, then stating that it and its subsidiaries, taken as a whole, as of the conditions of Section 2.12 Effective Date, are solvent, in each case, after giving effect to the designation consummation of such Borrower as the Designated Borrower Plan; · all fees due to the Administrative Agent, Collateral Agent and Lenders including advisors to the Consenting Stakeholders, Xxxxxxxxx & Co. and Milbank LLP, shall have been met paid (or shall have been caused to be paid), and all expenses to be paid or reimbursed to the reasonable satisfaction of the Administrative Agent, Collateral Agent and each Lender Lenders that have been invoiced at least three (3) Business Days prior to the Effective Date shall have received all been paid (or shall have been caused to be paid); · the Loan Parties shall have provided the documentation and other information to the Administrative Agent that are required by regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including, without limitation, including the Patriot Act, that has been reasonably requested by such Lender not less than ten at least three (3) Business Days prior to the Closing Date.
(c) Notwithstanding anything to the contrary in Article V, the only representations and warranties the accuracy of which shall be a condition to the Closing Effective Date are the following: (i) such representations and warranties made by the Target in the Acquisition Agreement as are material to the interests of the Arrangers and the Lenders, but only to the extent that the Company (or any of its affiliates) has the right such later date agreed to terminate its obligations under the Acquisition Agreement (or to refuse to consummate the Acquisition) as a result of a breach of such representations in the Acquisition Agreement (determined without regard to whether any notice is required to be delivered by the Company) and (ii) each of the representations and warranties of the Loan Parties contained in Section 5.01(a) (with respect to the Borrowers only), Section 5.01(b)(ii), 5.02(a), 5.04, 5.12, and 5.17;
(d) At least 10 days prior to the Closing Date, the Arrangers shall have received (a) audited consolidated balance sheets and related statements of income (or, in the case of Target, consolidated statements of operations and comprehensive income), shareholders’ equity (or, in the case of the Target, stockholders’ equity) and cash flows for the Target and the Company for the fiscal years ended December 31, 2010, 2011, 2012 and (in the event that the Closing Date occurs on a date that is more than 90 days following December 31, 2013) 2013, and (b) unaudited consolidated balance sheets and related statements of income (in the case of the Target, statements of operations and comprehensive income), shareholders’ equity (in the case of the Company) and cash flows for the Target and the Company for the fiscal quarter ended March 31, 2013 and each subsequent fiscal quarter ended on a date that is not a fiscal year end and that is at least 45 days before the Closing Date, in each case prepared in accordance with GAAP. The Company’s or the Target’s, as applicable, filing of any (a) required audited financial statements with respect to the Company or the Target, as applicable, on Form 10-K or (b) required unaudited financial statements with respect to the Company or the Target, as applicable, on Form 10-Q, in each case, will satisfy the requirements under clauses (a) or (b), as applicable, of this paragraph. The Arrangers hereby acknowledges that they have received each of the financial statements for the fiscal years ended December 31, 2010, 2011 and 2012 described in clause (a) of the first sentence of this clause (ii).
(e) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower confirming, as of the Closing Date, the satisfaction (unless waived by the Required Lenders) of the conditions specified in Section 4.02(c), (f), (g) and (h).
(a) Except as (i) set forth in the disclosure letter delivered by the Company (as defined in the Acquisition Agreement) to Parent (as defined in the Acquisition Agreement) on the date of the Acquisition Agreement (the “Company Disclosure Letter”) (it being understood that any information set forth in one section or subsection of the Company Disclosure Letter shall be deemed to apply to and qualify the section or subsection of the Acquisition Agreement to which it corresponds and each other section or subsection of the Acquisition Agreement to the extent that it is reasonably apparent that such information is relevant to such other section or subsection) or (ii) disclosed in the Company SEC Documents (as defined in the Acquisition Agreement) or any other report, schedule, form, statement or other document (including exhibits and other information incorporated therein) filed with, or furnished to, the SEC (as defined in the Acquisition Agreement) after January 1, 2010 and publicly available prior to the date of the Acquisition Agreement, other than any risk factor disclosures contained in the “Risk Factors” section thereof or other similarly cautionary or predictive statements therein, from December 31, 2012, through the date of the Acquisition Agreement, there shall not have been any Target Material Adverse Effect.
(g) Since the date of the Acquisition Agreement, there shall not have been any effect, change, event or circumstance or occurrence that has had or would reasonably be expected to have a Target Material Adverse Effect.
(h) The Administrative Agent shall have received reasonably satisfactory evidence (which may be provided by a certificate of a Responsible Officer of the Company) that the Acquisition has been consummated (or shall be consummated substantially concurrently with the making of the Loans on the Closing Date) in accordance with the terms of the Acquisition Agreement; provided that no amendment, modification or waiver of any term thereof or any condition to the Company’s obligation to consummate the Acquisition thereunder or consent granted thereunder will be made or granted, as the case may be, without the prior written consent (which consent shall not be unreasonably withheld or delayed) of the Arrangers (other than any such amendment, modification or waiver or consent that is not materially adverse to any interest of the Arrangers or the Lenders, it being understood that any (i) increase in the purchase price (other than an increase composed entirely of equity (or the proceeds of equity) of the Company) or (ii) any decrease of more than 10% of the purchase price, in each case, will require the consent of the Arrangers, which consent shall not be unreasonably withheld or delayed, with any decrease of the purchase price (including any decrease of less than 10% of the purchase price) to be allocated ratably to reduce (x) any bridge or permanent financing for the Acquisition and (y) the requirement of cash in hand intended to be used to finance the Acquisition (unless the Arrangers consent to an alternative allocation)).
(i) There shall be no outstanding loans under the Existing Credit Agreement the proceeds of which are used to finance the Acquisition unless the Aggregate Commitments under this Agreement have been utilized in full.
(j) The Lenders, the Administrative Agent and the Arranger shall have received all fees required pursuant to the terms hereof to be paid, and all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before the Closing Date, including fees and expenses and other compensation contemplated by the Fee Letters. All such amounts may be paid with proceeds of Loans made on the Closing Date and, to the extent so funded, will be reflected in the funding instructions given by the Company to the Administrative Agent on or before the Closing Date. Without duplication of the foregoing, unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced three requested ten (10) days prior to the Closing Effective Date.
(k) The Administrative Agent ; · the Bankruptcy Court shall have received a Note executed entered (A) the Confirmation Order and (B) one or more orders authorizing and approving the extensions of credit in respect of the Exit Credit Agreement, each in the amounts and on the terms set forth herein, and all transactions contemplated by the applicable Borrower Exit Credit Agreement, and, in favor each case, such orders shall be in full force and effect and shall not have been stayed, reversed, vacated or otherwise modified; · the Collateral and Guarantee Requirement (excluding certain customary post-closing items to be mutually agreed) shall have been satisfied or waived and the Intercreditor Agreement and the Agreement Among Lenders shall have been executed and delivered and be in full force and effect; · the effective date under the Plan shall have occurred, or contemporaneous with the conversion of the DIP Term Facility to the Term Loan Facility shall occur, and all conditions precedent thereto as set forth therein shall have been satisfied or waived (including (x) the issuance to (i) the holders of DIP Term Facility Claims of 44.9% of the New Common Stock, subject to dilution from the Management Incentive Plan and (ii) the holders of Term Loan Claims of 55.1% of New Common Stock (subject to reduction for New Common Stock distrusted in accordance with the following clause (y)) and (y) each Lender requesting holder of a Note.Term Loan Claim that is a Required Consenting Stakeholder (including through any of its Related Parties) having received its pro rata share of an amount of New Common Stock equal to $7.5 million, in each case shall have occurred substantially contemporaneously with the closing of the Term Loan Facility);
Appears in 1 contract
Samples: Restructuring Support Agreement (Ascena Retail Group, Inc.)
CONDITIONS TO BORROWINGS. The obligation of each Lender to make honor any Loan Notice (including any Loan Notice delivered in connection with the Loans Closing Date) is subject to the following conditions precedent on or before the Availability End Dateprecedent:
(a) The representations and warranties of the Borrower and each other Credit Party contained in Article VI or any other Credit 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 on and as of the date of the applicable Borrowing, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Section 5.02, the representations and warranties contained in subsections (a) and (b) of Section 6.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.01.
(b) No Default shall exist, or would result from such proposed Borrowing.
(c) There shall not have occurred a Bankruptcy Event with respect to any Credit Party.
(d) The Administrative Agent shall have received (i) a Request for Borrowing Loan Notice in accordance with the requirements hereof.
, (bii) If a duly completed Compliance Certificate signed by a Responsible Officer of the applicable Borrower is the Designated Borrower, then the conditions of Section 2.12 and giving pro forma effect to the designation of such Borrower requested Borrowing, and (iii) prior to or as the Designated Borrower shall have been met to the reasonable satisfaction of the Administrative Agent and each Lender shall have received all documentation and other information date required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act, that has been reasonably requested by pursuant to Sections 7.12(a) through (c) hereof (regardless of whether such Lender not less than ten Business Days date occurs prior to the Closing Date.
) all of the materials required pursuant to such Sections 7.12(a) through (c) Notwithstanding anything to for the contrary in Article V, the only representations and warranties the accuracy of which shall be a condition to the Closing Date are the following: (i) such representations and warranties made by the Target in the Acquisition Agreement as are material to the interests evaluation of the Arrangers and the Lenders, but only to the extent that the Company (or any of its affiliates) has the right to terminate its obligations under the Acquisition Agreement (or to refuse to consummate the Acquisition) as a result of a breach of such representations in the Acquisition Agreement (determined without regard to whether any notice is required to be delivered by the Company) and (ii) each of the representations and warranties of the Loan Parties contained in Section 5.01(a) (with respect to the Borrowers only), Section 5.01(b)(ii), 5.02(a), 5.04, 5.12, and 5.17;
(d) At least 10 days prior to the Closing Date, the Arrangers shall have received (a) audited consolidated balance sheets and related statements of income (or, in the case of Target, consolidated statements of operations and comprehensive income), shareholders’ equity (or, in the case of the Target, stockholders’ equity) and cash flows for the Target and the Company for the fiscal years ended December 31, 2010, 2011, 2012 and (in the event that the Closing Date occurs on a date that is more than 90 days following December 31, 2013) 2013, and (b) unaudited consolidated balance sheets and related statements of income (in the case of the Target, statements of operations and comprehensive income), shareholders’ equity (in the case of the Company) and cash flows for the Target and the Company for the fiscal quarter ended March 31, 2013 and each subsequent fiscal quarter ended on a date that is not a fiscal year end and that is at least 45 days before the Closing Date, in each case prepared in accordance with GAAP. The Company’s or the Target’s, as applicable, filing of any (a) required audited financial statements with respect to the Company or the Target, as applicable, on Form 10-K or (b) required unaudited financial statements with respect to the Company or the Target, as applicable, on Form 10-Q, in each case, will satisfy the requirements under clauses (a) or (b), as applicable, of this paragraph. The Arrangers hereby acknowledges that they have received each of the financial statements for the fiscal years ended December 31, 2010, 2011 and 2012 described in clause (a) of the first sentence of this clause (iiapplicable Proposed Approved Property(ies).
(e) The Administrative Agent shall have received a certificate signed by a Responsible Officer approved the applicable Proposed Approved Properties as “Approved Properties” hereunder in accordance with the provisions of Section 7.12 hereof and the Borrower confirming, as of the Closing Date, the satisfaction (unless waived by the Required Lendersapplicable Mortgage Instrument(s) and Assignment(s) of the conditions specified in Section 4.02(c), (f), (g) and (h).
(a) Except as (i) set forth in the disclosure letter delivered by the Company (as defined in the Acquisition Agreement) to Parent (as defined in the Acquisition Agreement) on the date of the Acquisition Agreement (the “Company Disclosure Letter”) (it being understood that any information set forth in one section or subsection of the Company Disclosure Letter Leases shall be deemed to apply to and qualify the section or subsection of the Acquisition Agreement to which it corresponds and each other section or subsection of the Acquisition Agreement to the extent that it is reasonably apparent that such information is relevant to such other section or subsection) or (ii) disclosed in the Company SEC Documents (as defined in the Acquisition Agreement) or any other report, schedule, form, statement or other document (including exhibits and other information incorporated therein) filed with, or furnished to, the SEC (as defined in the Acquisition Agreement) after January 1, 2010 and publicly available prior to the date of the Acquisition Agreement, other than any risk factor disclosures contained in the “Risk Factors” section thereof or other similarly cautionary or predictive statements therein, from December 31, 2012, through the date of the Acquisition Agreement, there shall not have been any Target Material Adverse Effect.
(g) Since the date of the Acquisition Agreement, there shall not have been any effect, change, event or circumstance or occurrence that has had or would reasonably be expected to have a Target Material Adverse Effect.
(h) The Administrative Agent shall have received reasonably satisfactory evidence (which may be provided by a certificate of a Responsible Officer of the Company) that the Acquisition has been consummated (or shall be consummated substantially concurrently with the making of the Loans on the Closing Date) recorded in accordance with the terms of the Acquisition Agreement; provided that no amendment, modification or waiver of any term thereof or any condition to the Company’s obligation to consummate the Acquisition thereunder or consent granted thereunder will be made or granted, as the case may be, without the prior written consent (which consent shall not be unreasonably withheld or delayed) of the Arrangers (other than any such amendment, modification or waiver or consent that is not materially adverse to any interest of the Arrangers or the Lenders, it being understood that any (i) increase in the purchase price (other than an increase composed entirely of equity (or the proceeds of equity) of the Company) or (ii) any decrease of more than 10% of the purchase price, in each case, will require the consent of the Arrangers, which consent shall not be unreasonably withheld or delayed, with any decrease of the purchase price (including any decrease of less than 10% of the purchase price) to be allocated ratably to reduce (x) any bridge or permanent financing for the Acquisition and (y) the requirement of cash in hand intended to be used to finance the Acquisition (unless the Arrangers consent to an alternative allocation))hereof.
(if) There Immediately after giving effect to the making of such Borrowing, the Outstanding Amount shall not exceed the Aggregate Approved Property Balances as of such date and all other conditions to Borrowings set forth herein (including those set forth in Section 2.01 hereof) are fully satisfied. Each Loan Notice submitted by the Borrower shall be no outstanding loans under deemed to be a representation, warranty and covenant that the Existing Credit Agreement the proceeds of which are used to finance the Acquisition unless the Aggregate Commitments under this Agreement conditions specified in Sections 5.02(a), (b), (c), (e) and (f) have been utilized in full.
(j) The Lenders, the Administrative Agent and the Arranger shall have received all fees required pursuant to the terms hereof to be paid, and all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before the Closing Date, including fees and expenses and other compensation contemplated by the Fee Letters. All such amounts may be paid with proceeds of Loans made on the Closing Date and, to the extent so funded, will be reflected in the funding instructions given by the Company to the Administrative Agent satisfied on or before the Closing Date. Without duplication and as of the foregoing, unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements date of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced three days prior to the Closing Date.
(k) The Administrative Agent shall have received a Note executed by the applicable Borrower in favor of each Lender requesting a NoteBorrowing.
Appears in 1 contract
Samples: Bridge Acquisition Facility (Wells Real Estate Investment Trust Ii Inc)
