Conditions to Closing Date. The effectiveness of this Agreement is subject to the satisfaction or waiver of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred): (a) The Administrative Agent shall have received each of the following: (i) counterparts of this Agreement executed by each of the parties hereto; (ii) if requested by any Lender pursuant to Section 2.12.(a) at least three (3) days prior to the date hereof, a Note executed by the Borrowers, payable to such Lender and complying with the terms of Section 2.12.(a); (iii) a fully executed copy of the Merger Agreement; (iv) an opinion of Hogan Lovells LLP, counsel to the Company and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent; (v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan Party; (vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect; (vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, in the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation; (viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party; (ix) [intentionally omitted]; (x) [intentionally omitted]; (xi) a Solvency Certificate from the chief financial officer of the Parent; (xii) [intentionally omitted]; (a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and at least 45 days prior to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii); (xiv) to the extent invoiced at least one (1) Business Day prior to the Closing Date, evidence that all accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable to the Administrative Agent, the Lead Arranger and the Lenders on the Closing Date shall have been paid; and (xv) all necessary information in connection with the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each case to be delivered by the Loan Parties not later than five (5) Business Days prior to the Closing Date to the extent such information is requested not later than ten (10) Business Days prior to the Closing Date; and (b) (i) there shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);
Appears in 1 contract
Samples: Delayed Draw Term Loan Agreement (Park Hotels & Resorts Inc.)
Conditions to Closing Date. The effectiveness occurrence of this Agreement the Closing Date is subject to the satisfaction or waiver of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The Administrative Agent shall have received each Agent’s receipt of the following:
, each of which shall be originals or facsimiles (ifollowed promptly by originals) counterparts of this Agreement or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by each a Responsible Officer of the parties hereto;
signing Loan Party, each dated the Closing Date (ii) if requested by any Lender pursuant to Section 2.12.(a) at least three (3) days prior to or, in the date hereofcase of certificates of governmental officials, a Note executed by recent date before the Borrowers, payable to such Lender Closing Date) and complying with the terms of Section 2.12.(a);
(iii) a fully executed copy of the Merger Agreement;
(iv) an opinion of Hogan Lovells LLP, counsel to the Company and the other Loan Parties, addressed to the Administrative Agent and the Lenders and each in form and substance reasonably satisfactory to Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Subsidiary Guaranty, in each case sufficient in number for distribution to Administrative Agent, each Lender, Parent, and Borrower;
(vii) the certificate or articles a Note executed by Borrower in favor of incorporation or formation, articles each Lender requesting a Note;
(iii) such certificates of organization, certificate of limited partnership resolutions or other comparable organizational document (if any) action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified as of a recent date by Administrative Agent may require evidencing the Secretary of State of the state of formation of such Loan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation identity, authority and capacity of each such Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Party and certificates of qualification Documents to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required a party;
(iv) such documents and certifications as Administrative Agent may reasonably require to be so evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified and to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to be do so qualified could not reasonably be expected to have a Material Adverse Effect;
(viiv) favorable opinions of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, and Xxxxxxx LLP, counsel to Borrower and Parent, each addressed to Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as Administrative Agent may reasonably request;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) a Responsible Officer of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, in the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of either (A) the by-laws attaching copies of such Loan Partyall consents, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case licenses and approvals of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize Governmental Authority required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of Parent, for itself and on behalf of Borrower, certifying (A) that the conditions specified in Sections 6.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since December 31, 2014 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(viii) a duly completed Unencumbered Property Report and Compliance Certificate certifying compliance with the financial covenants set forth in Section 9.13, in each case prepared as of September 30, 2015, on a proforma basis, and signed by a Responsible Officer of Parent, for itself and on behalf of Borrower;
(ix) [intentionally omitted];such other certificates, documents, instruments or information as Administrative Agent or Required Lenders may reasonably require.
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and at least 45 days prior to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) to the extent invoiced at least one (1) Business Day prior to the Closing Date, evidence that all accrued costs, Any fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable paid pursuant to the Administrative Agent, the Lead Arranger and the Lenders Loan Documents on or before the Closing Date shall have been paid; and.
(xvc) Unless waived by Administrative Agent, Borrower shall have paid all necessary information in connection fees, charges and disbursements of counsel to Administrative Agent (directly to such counsel if requested by Administrative Agent) required to be paid pursuant to the Loan Documents to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.03, for purposes of determining compliance with the Patriot Actconditions specified in this Section 6.01, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification)each Lender that has signed this Agreement shall be deemed to have consented to, “know your customer” requirements, and other customary requirements, in each case approved or accepted or to be delivered satisfied with, each document or other matter required thereunder to be consented to or approved by the Loan Parties not later than five (5) Business Days or acceptable or satisfactory to a Lender unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date to the extent such information is requested not later than ten (10) Business Days prior to the Closing Date; and
(b) (i) there shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of specifying its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);objection thereto.
Appears in 1 contract
Conditions to Closing Date. The effectiveness obligations of this Agreement is the Lenders to make Loans and any L/C Issuer to issue Letters of Credit or increase the stated amounts of Letters of Credit hereunder on the terms provided herein are subject to the satisfaction or waiver (in accordance with Section 10.01 hereof) of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The Administrative Agent shall have received each Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by delivery of originals to the Administrative Agent) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower and each other applicable Loan Party and dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement executed by each of the parties party hereto;
(ii) if requested by any Lender pursuant 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 the identity, authority and capacity of each Responsible Officer thereof authorized to Section 2.12.(a) at least three (3) days prior act as a Responsible Officer in connection with this Agreement and the other Loan Documents to the date hereof, which such Loan Party is a Note executed by the Borrowers, payable party or is to such Lender and complying with the terms of Section 2.12.(a)be a party;
(iii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party (A) is duly organized or formed, including a fully executed certified true and correct copy of the Merger Agreementcharter of such Loan Party, and each amendment thereto, as in effect on the Closing Date, and (B) is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(iv) an opinion executed counterparts of Hogan Lovells LLP, counsel the Guaranty by each party hereto;
(v) a Note duly executed by the Borrower in favor of each Lender requesting a Note at least three Business Days prior to the Company Closing Date;
(vi) a security agreement, in substantially the form of Exhibit G hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 6.12, the “Security Agreement”), duly executed by each Loan Party, together with:
(A) certificates and instruments representing the Pledged Equity and Pledged Debt referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) a Perfection Certificate, in substantially the form of Exhibit N, duly executed by each of the Loan Parties,
(D) copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that are required by the Perfection Certificate or that the Administrative Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens) and
(E) evidence of insurance required by terms of any Loan Document, including, but not limited to, certificates of insurance, in form and detail reasonably acceptable to the Administrative Agent, describing the types and amounts of insurance (property and liability) maintained by any of the Loan Parties, addressed to in each case naming the Administrative Agent as lender loss payee or additional insured, as the case may be, together with endorsements naming Administrative Agent as lender loss payee and the Lenders and additional insured, as applicable, in each case in form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a partyIntellectual Property Security Agreements, in form and substance reasonably satisfactory to the case of each BorrowerAdministrative Agent, authorized covering the items set forth on Schedule IV to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuationthe Security Agreement;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) a favorable opinion of each Loan Party of (A) the by-laws of such Loan PartyXxxxxxx, if a corporationSwaine & Xxxxx LLP, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party special New York counsel to authorize the execution, delivery and performance of the Loan Documents Parties, addressed to which it is a partythe Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(ix) [intentionally omittedreserved];
(x) [intentionally omitted]the Audited Financial Statements, the unaudited consolidated financial statements of the Borrower and its Subsidiaries as of the end of the fiscal quarter ended June 30, 2021 and financial projections for each fiscal year from the fiscal year ending December 31, 2021 through the fiscal year ending December 31, 2025 reasonably satisfactory to the Lead Arranger;
(xi) a certificate attesting to the Solvency Certificate of the Borrower and its Subsidiaries, on a consolidated basis, immediately before and immediately after giving effect to the Transactions, from the chief financial officer Chief Financial Officer of the ParentBorrower, in substantially the form of Exhibit I hereto;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows a certificate signed by a Responsible Officer of the Parent for Borrower certifying that the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 conditions specified in Sections 4.02(a) and (b) GAAP unaudited consolidated balance sheets have been satisfied;
(xiii) a duly executed funds disbursement agreement, together with a report setting forth the sources and related statements of income, changes in equity and cash flows uses of the Parent for each subsequent fiscal quarter ending after December 31proceeds hereof;
(xiv) copies of duly executed payoff letters, 2018 in form and substance reasonably satisfactory to the Administrative Agent, executed by the administrative agent under the Existing Credit Agreement, together with (a) UCC-3 or other appropriate termination statements, in form and substance reasonably satisfactory to the Administrative Agent, releasing all liens upon any of the personal property of the Borrower and its Subsidiaries in respect of the Existing Credit Agreement and any other Indebtedness not permitted hereunder and (b) any other releases, terminations or other documents reasonably required by the Administrative Agent;
(b) Each of the Loan Parties shall have provided the documentation and other information to the Administrative Agent that is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering laws, rules and regulations, including the Act, with respect to the Borrower and the Guarantors, to the extent requested at least 45 seven days prior to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);.
(xivc) to the extent invoiced at least one (1) Business Day The Borrower shall have paid, on or prior to the Closing Date, evidence that (i) all accrued costs, fees and expenses (including legal fees and expenses and the reasonable fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable counsel to the Administrative Agent, the Lead Arranger and the Lenders ) required to be paid on the Closing Date pursuant to Section 2.09(b) hereof and (ii) all other fees and expenses required to be paid pursuant to Section 10.04(a) for which invoices shall have been paid; and
(xv) all necessary information in connection with presented to the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each case to be delivered by the Loan Parties not later than five (5) Business Days Borrower at least three days prior to the Closing Date (or such shorter time as the Borrower may agree). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the extent Administrative Agent shall have received notice from such information is requested not later than ten (10) Business Days Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall promptly notify the Borrower and the Lenders of the Closing Date; and
(b) (i) there , and such notice shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood conclusive and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);binding.
Appears in 1 contract
Samples: Credit Agreement (AdvanSix Inc.)
Conditions to Closing Date. The effectiveness occurrence of this Agreement the Closing Date is subject to the satisfaction or waiver of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent shall have received and each of the followingLenders:
(i) executed counterparts of this Agreement executed by Agreement, sufficient in number for distribution to the Administrative Agent, each of Lender and the parties heretoBorrower;
(ii) if requested by any Lender pursuant to Section 2.12.(a) at least three (3) days prior to the date hereof, a Note executed by the Borrowers, payable to such Borrower in favor of each Lender and complying with the terms of Section 2.12.(a)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 the identity, authority and capacity of each Responsible Officer thereof authorized to act as a fully executed copy of Responsible Officer in connection with this Agreement and the Merger Agreementother Loan Documents to which such Loan Party is a party;
(iv) an copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Loan Parties is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(v) a favorable opinion of Hogan Lovells Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Company and the other Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Lenders Loan Parties and in form and substance reasonably satisfactory to the Loan Documents as the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan PartyAgent may request;
(vi) a certificate of good standing (or certificate a Responsible Officer of similar meaning) with respect to each Loan Party issued as either (A) attaching copies of a recent date all consents, licenses and approvals required in connection with the execution, delivery and performance by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a), (b), and (c) 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; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on March 31, 2015, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be so qualified maintained pursuant to the Loan Documents has been obtained and where failure is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be so qualified paid hereunder or under the Fee Letter on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of any Loan on the Closing Date).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 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 on and as of the Closing Date.
(e) No Default shall exist, or would result from, any Borrowing on the Closing Date or from the application of the proceeds thereof.
(f) There shall not have occurred any 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.
(g) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate . Without limiting the generality of incumbency the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed by the Secretary this Agreement shall be deemed to have consented to, approved or Assistant Secretary (accepted or to be satisfied with, each document or other individual performing similar functions) of each Loan Party with respect matter required thereunder to each of be consented to or approved by or acceptable or satisfactory to a Lender unless the officers of Administrative Agent shall have received notice from such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, in the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) [intentionally omitted];
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and at least 45 days Lender prior to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) to the extent invoiced at least one (1) Business Day prior to the Closing Date, evidence that all accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable to the Administrative Agent, the Lead Arranger and the Lenders on the proposed Closing Date shall have been paid; and
(xv) all necessary information in connection with the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each case to be delivered by the Loan Parties not later than five (5) Business Days prior to the Closing Date to the extent such information is requested not later than ten (10) Business Days prior to the Closing Date; and
(b) (i) there shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of specifying its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);objection thereto.
Appears in 1 contract
Conditions to Closing Date. The effectiveness obligations of this Agreement is (a) the Lenders to make Loans and (b) any L/C Issuer to issue Letters of Credit or increase the stated amounts of Letters of Credit hereunder on the terms provided herein are subject to the satisfaction or waiver (in accordance with Section 10.01 hereof) of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The Administrative Agent shall have received each Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by delivery of originals to the Administrative Agent) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement executed the Guaranty by each of the parties heretoparty thereto;
(ii) if requested a Note duly executed by any the Borrower in favor of each Lender pursuant to Section 2.12.(a) requesting a Note at least three (3) days Business Days prior to the date hereof, a Note executed by the Borrowers, payable to such Lender and complying with the terms of Section 2.12.(a)Closing Date;
(iii) a fully security agreement, in substantially the form of Exhibit G hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the “Security Agreement”), duly executed copy by each Loan Party, together with:
(A) certificates and instruments representing the Pledged Equity and Pledged Debt referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) a Perfection Certificate, in substantially the form of Exhibit N, duly executed by each of the Merger AgreementLoan Parties, and
(D) copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that are required by the Perfection Certificate or that the Administrative Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens);
(iv) an opinion deeds of Hogan Lovells LLPtrust, trust deeds, deeds to secure debt, mortgages, leasehold mortgages and leasehold deeds of trust, in substantially the form of Exhibit O (with such changes as may be reasonably satisfactory to the Administrative Agent and its counsel to account for local law matters) and covering the Company properties listed on Schedule 6 to the Perfection Certificate (together with the fixture filings and Assignments of Leases and Rents referred to therein and each other mortgage delivered pursuant to Section 6.12, in each case as amended, the “Mortgages”), duly executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties, subject only to Permitted Encumbrances, and that all filing, documentary, stamp, intangible and recording taxes and other fees in connection therewith have been paid,
(B) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”), with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only Permitted Encumbrances, and providing for such other affirmative insurance and such coinsurance and direct access reinsurance as the Administrative Agent may deem necessary or desirable,
(1) American Land Title Association/American Congress on Surveying and Mapping form surveys or (2) to the extent surveys exist and the other title insurer is willing to issue the applicable Mortgage Policies free of any exceptions for survey matters (in which case the appropriate Loan PartiesParty shall deliver such affidavits of no change or similar as required by the title insurer), addressed updates thereof, in each case, for which all necessary fees (where applicable) have been paid, and dated no more than 30 days before the day of the Initial Credit Extension, certified to the Administrative Agent and the Lenders issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent,
(D) evidence of the insurance required by the terms of the Mortgages,
(E) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Loan Party relating thereto) and, if any such Mortgaged Property is located within a special flood hazard area as determined by the Federal Emergency Management Agency, copies of the appropriate Loan Party’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance satisfactory to the Administrative Agent and naming the Administrative Agent as loss payee on behalf of the Secured Parties; and
(F) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to create valid first and subsisting Liens on the property described in the Mortgages, subject only to Permitted Encumbrances, has been taken;
(v) Intellectual Property Security Agreements, in form and substance reasonably satisfactory to the Administrative Agent, covering the items set forth on Schedule IV to the Security Agreement;
(vi) [reserved];
(vii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Guarantor as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Loan Documents to which such Guarantor is a party or is to be a party;
(viii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Guarantor (A) is duly organized or formed, including certified true and correct copies of the charter of each Guarantor, and each amendment thereto, as in effect on the Closing Date, and (B) is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(ix) a favorable opinion of Cravath, Swaine & Xxxxx LLP, special counsel to the Loan Parties, addressed to each Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(vx) favorable opinions of local counsel for the certificate or articles of incorporation or formationLoan Parties in the jurisdictions set forth on Exhibit J, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of in each Loan Party certified as of a recent date by case in form and substance reasonably satisfactory to the Secretary of State of the state of formation of such Loan PartyAdministrative Agent;
(vixi) a favorable opinion of general counsel to the Borrower, in form and substance reasonably satisfactory to the Administrative Agent;
(xii) (A) unaudited consolidated financial statements of the Borrower and its subsidiaries for any interim quarterly period subsequent to March 31, 2014, that has ended at least 50 days prior to the Closing Date, and (B) forecasts prepared by management of the Borrower, each in customary form, of balance sheets, income statements and cash flow statements on a quarterly basis for the first year following the Closing Date and on an annual basis through the fifth anniversary of the Closing Date;
(xiii) (A) a certificate attesting to the Solvency of good standing the Loan Parties, on a consolidated basis, immediately before and immediately after giving effect to the Transactions, from the Chief Financial Officer of the Borrower and (B) a certificate attesting to the Solvency of ATK and its Subsidiaries, on a consolidated basis, immediately before and immediately after giving effect to the Transactions, from the Chief Financial Officer of ATK, in each case, in substantially the form of Exhibit I hereto;
(xiv) a report supplementing Schedules 5.08(c) and 5.13 hereto, including an identification of (1) all owned real property acquired for $10,000,000 or certificate more of similar meaningthe type described in Section 5.08(c) with respect since the Execution Date (including the street address, county or other relevant jurisdiction, state, record owner, and purchase price thereof) and (2) a description of such other changes, if any, in the information included in such Schedules as may be necessary for such Schedules to each Loan Party issued as be accurate and complete;
(xv) copies of a recent date (i) the Transaction Agreement, duly executed by the Secretary of State parties thereto, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall reasonably request and (ii) an opinion addressed to ATK from counsel to ATK, subject to customary assumptions and limitations, to the effect that the Spin-Off will qualify for the Intended Distribution Tax Treatment (as defined in the Transaction Agreement); and
(xvi) a certificate signed by a Responsible Officer of the state of formation of each such Loan Party Borrower certifying (A) that the conditions specified in Sections 4.03(a) and certificates of qualification to transact business (b) have been satisfied and (B) that since April 28, 2014, no fact, event, condition, change, occurrence or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in effect shall have occurred which such Loan Party is required to be so qualified and where failure to be so qualified could has had or would reasonably be expected to have a Company Material Adverse Effect;; provided, however, that, each of the requirements set forth in clauses (iii) and (iv) above (except for the execution and delivery of the Security Agreement and to the extent that a Lien on such Collateral may be perfected (x) by the filing of a financing statement under the UCC or customary “short form” intellectual property filings with the United States Patent and Trademark Office or the United States Copyright Office or (y) by the delivery of stock certificates of each direct or indirect Domestic Subsidiary of the Borrower that is a Material Subsidiary) shall not constitute conditions precedent to the Initial Credit Extension on the Closing Date after the Borrower’s use of commercially reasonable efforts to provide such items on or prior to the Closing Date if the Borrower agrees to deliver, or cause to be delivered, such search results, documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within ninety days after the Closing Date (subject to extensions approved by the Administrative Agent in its reasonable discretion).
(viib) a certificate Each of incumbency signed the Guarantors shall have provided the documentation and other information to the Administrative Agent that are required by regulatory authorities under applicable “know-your-customer” rules and regulations, including the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party Act, with respect to each of the officers of such Loan Party authorized Guarantors, to execute and deliver the Loan Documents to which such Loan Party is a party, in the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) [intentionally omitted];
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and extent requested at least 45 seven days prior to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);.
(xivc) to the extent invoiced at least one (1) Business Day The Borrower shall have paid, prior to the Closing Date, evidence that (i) all accrued costs, fees and expenses (including legal fees and expenses and the reasonable fees and expenses of any other advisors Shearman & Sterling LLP) required to be reimbursed under the Commitment Letter) and other compensation due and payable to the Administrative Agent, the Lead Arranger and the Lenders paid on the Closing Date pursuant to Section 2.09(b) hereof and (ii) all other fees and expenses required to be paid pursuant to Section 10.04(a) for which invoices shall have been paid; and
(xv) all necessary information in connection with the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each case to be delivered by the Loan Parties not later than five (5) Business Days prior presented to the Closing Date to the extent such information is requested not later than ten (10) Business Days Borrower at least three days prior to the Closing Date; and.
(bd) (i) there Since December 31, 2013, no Company Material Adverse Effect shall not have occurred (it being understood that the Borrower’s business, results of operations, assets and financial condition as of December 31, 2013, shall be determined on or after the Commitment Effective Date any amendmentsbasis of information provided to the Administrative Agent prior to April 28, modifications or waivers by PK Domestic LLC or any 2014).
(e) Immediately prior to the initial funding of its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates underthe Facilities on the Closing Date, the Merger Agreement Borrower shall have declared the ATK Dividend and the Spin-off shall have been consummated and substantially concurrently with the initial funding of the Facilities on the Closing Date, the Borrower will consummate the ATK Dividend and the Merger, in each case in accordance with the Transaction Agreement, without giving effect to any waiver or amendment thereof or consent thereunder, in each case, that are is materially adverse to the Lenders or interests of the Lead Arranger in their respective capacities Lenders, without the prior written consent of the Lead ArrangerArrangers; provided that any material amendment to the definition of “Sporting Assets”, such consent not to be unreasonably withheld, delayed “Sporting Liabilities” or conditioned (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity Sporting Material Adverse Effect” shall not be deemed to be materially adverse to the interests of the Lenders Lenders.
(f) On the Closing Date, no default shall have occurred and be continuing under the Lead Arranger Existing ATK Credit Agreement as a result of the consummation of the Transactions.
(g) After giving effect to the Transactions, the Borrower and its Subsidiaries shall not require have more than $1,000,000 aggregate principal amount of outstanding debt for borrowed money other than Indebtedness under the consent Loan Documents.
(h) After giving effect to the Transactions, the Borrower and its Subsidiaries shall have available Liquidity of at least $100,000,000. Without limiting the generality of the Lead Arranger to provisions of the extent funded by equity only and (ii) any decrease last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in the Cash Merger Consideration this Section 4.02, each Lender that has signed this Agreement shall not be deemed to have consented to, approved or accepted or to be materially adverse 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 interests proposed Closing Date specifying its objection thereto. The Administrative Agent shall promptly notify the Borrower and the Lenders of the Lenders Closing Date, and the Lead Arranger if such decrease notice shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments be conclusive and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);binding.
Appears in 1 contract
Conditions to Closing Date. The effectiveness obligations of this Agreement is the Lenders to make Loans and any L/C Issuer to issue Letters of Credit or increase the stated amounts of Letters of Credit hereunder on the terms provided herein are subject to the satisfaction or waiver (in accordance with Section 10.01 hereof) of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The Administrative Agent shall have received each Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by delivery of originals to the Administrative Agent) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower and each other applicable Loan Party and dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i1) executed counterparts of this Agreement by each party hereto;
(2) 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 the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(3) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party (A) is duly organized or formed, including a certified true and correct copy of the charter of such Loan Party, and each amendment thereto, as in effect on the Closing Date, and (B) is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(4) executed counterparts of the Guaranty by each party hereto;
(5) a Note duly executed by the Borrower in favor of each Lender requesting a Note at least three Business Days prior to the Closing Date;
(6) a security agreement, in substantially the form of Exhibit G hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 6.12, the “Security Agreement”), duly executed by each Loan Party, together with:
(A) certificates and instruments representing the Pledged Equity and Pledged Debt referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) a Perfection Certificate, in substantially the form of Exhibit N, duly executed by each of the parties heretoLoan Parties,
(X) xxxxxx xx XXX, Xxxxxx Xxxxxx Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that are required by the Perfection Certificate or that the Administrative Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens) and
(E) evidence of insurance required by terms of any Loan Document;
(ii7) if requested by any Lender pursuant to Section 2.12.(a) at least three (3) days prior Intellectual Property Security Agreements, in form and substance reasonably satisfactory to the date hereofAdministrative Agent, a Note executed by covering the Borrowers, payable items set forth on Schedule IV to such Lender and complying with the terms of Section 2.12.(a);
(iii) a fully executed copy of the Merger Security Agreement;
(iv) an 8) a favorable opinion of Hogan Lovells Cravath, Swaine & Xxxxx LLP, special New York counsel to the Company and the other Loan Parties, addressed to the Administrative Agent and the Lenders and each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(v9) favorable opinions of local counsel for the certificate or articles of incorporation or formationLoan Parties in the jurisdictions set forth on Exhibit J, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of in each Loan Party certified as of a recent date by case in form and substance reasonably satisfactory to the Secretary of State of the state of formation of such Loan PartyAdministrative Agent;
(vi10) correct and complete copies of the Separation Documents (or drafts thereof, with copies of executed versions to follow upon execution thereof) and documentation reasonably satisfactory to the Administrative Agent with respect to the corporate structure of the Borrower and its Subsidiaries immediately after the effectiveness of the Spin-Off;
(11) a certificate of good standing (or certificate of similar meaning) with respect attesting to each Loan Party issued as of a recent date by the Secretary of State Solvency of the state Borrower and its Subsidiaries, on a consolidated basis, immediately before and immediately after giving effect to the Transactions, from the Chief Financial Officer of formation the Borrower, in substantially the form of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;Exhibit I hereto; and
(vii12) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each a Responsible Officer of the officers of such Loan Party authorized to execute and deliver Borrower certifying that the Loan Documents to which such Loan Party is a party, conditions specified in the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;
(viiiSections 4.02(a) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) [intentionally omitted];
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows have been satisfied.
(b) Each of the Parent for each subsequent fiscal quarter ending after December 31Loan Parties shall have provided the documentation and other information to the Administrative Agent that is required by regulatory authorities under applicable “know-your-customer” rules and regulations, 2018 including the Act, with respect to the Borrower and the Guarantors, to the extent requested at least 45 seven days prior to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);.
(xivc) to the extent invoiced at least one (1) Business Day The Borrower shall have paid, on or prior to the Closing Date, evidence that (i) all accrued costs, fees and expenses (including legal fees and expenses and the reasonable fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable counsel to the Administrative Agent, the Lead Arranger and the Lenders ) required to be paid on the Closing Date pursuant to Section 2.09(b) hereof and (ii) all other fees and expenses required to be paid pursuant to Section 10.04(a) for which invoices shall have been paid; and
(xv) all necessary information in connection with presented to the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each case to be delivered by the Loan Parties not later than five (5) Business Days Borrower at least three days prior to the Closing Date (or such shorter time as the Borrower may agree). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the extent Administrative Agent shall have received notice from such information is requested not later than ten (10) Business Days Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall promptly notify the Borrower and the Lenders of the Closing Date; and
(b) (i) there , and such notice shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood conclusive and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);binding.
Appears in 1 contract
Samples: Credit Agreement (AdvanSix Inc.)
Conditions to Closing Date. The effectiveness of this Agreement and the obligation of each Lender to make its Commitments and its Loans hereunder on the Closing Date is subject to satisfaction (or waiver, by the satisfaction or waiver Required Lenders in their sole discretion) of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The Administrative Agent shall have received each Agent’s and Xxxxxxx’ receipt of the following:
(i) counterparts of this Agreement executed by , each of the parties hereto;
which shall be original, .pdf or facsimile copies or delivered by other electronic method unless otherwise specified, each properly executed (iiif applicable) if requested by any Lender pursuant to Section 2.12.(a) at least three (3) days prior to the date hereofa Responsible Officer of each signing Loan Party, a Note executed by the Borrowers, payable to such Lender and complying with the terms of Section 2.12.(a);
(iii) a fully executed copy of the Merger Agreement;
(iv) an opinion of Hogan Lovells LLP, counsel to the Company and the other Loan Parties, addressed to the Administrative Agent and the Lenders and each in form and substance reasonably satisfactory to the Administrative AgentRequired Lenders:
(i) executed counterparts of this Agreement;
(ii) a Note executed by the Borrower in favor of each Lender that has requested a Note at least two Business Days in advance of the Closing Date;
(iii) a copy of the Organization Documents in relation to each Loan Party;
(iv) the Security Agreement and each other Collateral Document, if any, set forth on Schedule 4.01(a) required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party thereto;
(v) Debtors shall deliver draft copies of all material pleadings, motions, applications and other substantive documents to be filed in the certificate or articles Chapter 11 Cases (including any “first day” filings) to the Lenders; and
(vi) such certificates of incorporation or formationgood standing (to the extent such concept exists) from the applicable secretary of state of the state of organization of each Loan Party, articles certificates of organization, certificate of limited partnership resolutions or other comparable organizational document (if any) corporate or limited liability company action, specimen signatures and/or incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified as of a recent date by the Secretary of State and resolutions of the state board of formation directors, board of such Loan Party;
(vi) a certificate of good standing (managers or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) members of each Loan Party with respect to (in each case, as appropriate or applicable) as the Lenders may reasonably require evidencing the identity, authority and capacity of the officers of such Loan Party each Responsible Officer thereof authorized to execute act as a Responsible Officer in connection with this Agreement and deliver the other Loan Documents to which such Loan Party is a partyparty or is to be a party on the Closing Date.
(b) The Debtors shall have completed a detailed internal and external communications plan relating to the Chapter 11 Cases and the restructuring contemplated thereunder, to be in form and substance reasonably satisfactory to the Debtors and the Required Lenders.
(c) The Petition Date shall have occurred and each Debtor shall be a debtor and debtor-in-possession in the Chapter 11 Cases.
(d) The Interim Order shall have been entered by the Bankruptcy Court.
(e) All fees and expenses required to be paid on the Closing Date pursuant to the DIP Order, the terms and conditions of this Agreement or the Agency Fee Letter (including legal expenses payable in accordance with Section 11.03) shall have been paid on or prior to the Closing Date or will be paid from, or offset against, the proceeds of the Initial Draw (but, in the case of each Borrowerexpenses, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) [intentionally omitted];
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and at least 45 days prior to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) only to the extent invoiced at least one (1) Business Day (or such later time as may be reasonably agreed by the Borrower) prior to the Closing Date, evidence that all accrued costs, fees and expenses ).
(including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letterf) and other compensation due and payable to the Administrative Agent, the Lead Arranger The Agent and the Lenders on shall have received all documentation and other information about the Borrower and the Guarantors as shall have been reasonably requested in writing by the Agent or any Lender at least three (3) calendar days prior to the Closing Date shall have been paid; and
(xv) all necessary information in connection with and as determined by the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), Agent or any Lender to be required under applicable “know your customer” requirementsand anti-money laundering rules and regulations, including the USA Patriot Act.
(g) The Lenders shall have received a fully executed engagement letter between Xxxxxxxx Xxxxx Capital, Inc. and other customary requirements, in each case to be delivered by the Loan Parties not later than five (5) Business Days prior Borrower reasonably acceptable to the Closing Date to the extent such information is requested not later than ten (10) Business Days prior to the Closing Date; and
(b) (i) there shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders Debtors and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Required Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);.
Appears in 1 contract
Conditions to Closing Date. The effectiveness obligations of this Agreement the Lenders to make Loans hereunder shall not become effective until the Closing Date which is subject scheduled to occur upon the satisfaction or waiver of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The Administrative Agent shall have received each Agent’s receipt of the following:
, each of which shall be originals or facsimiles (ifollowed promptly by originals) counterparts of this Agreement and unless otherwise specified, each properly executed by each an authorized officer of the parties hereto;
signing Loan Party, each dated the Closing Date (ii) if requested by any Lender pursuant to Section 2.12.(a) at least three (3) days prior to or, in the date hereofcase of certificates of governmental officials, a Note executed by recent date before the Borrowers, payable to such Lender Closing Date) and complying with the terms of Section 2.12.(a);
(iii) a fully executed copy of the Merger Agreement;
(iv) an opinion of Hogan Lovells LLP, counsel to the Company and the other Loan Parties, addressed to the Administrative Agent and the Lenders and each in form and substance reasonably satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, each dated as of the Closing Date;
(ii) Notes executed by the Borrower in favor of each Lender requesting such Notes, each dated as of the Closing Date;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of officers of each Loan Party as the Administrative Agent may require to establish the identities of and verify the authority and capacity of each officer thereof authorized to act in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such evidence as the Administrative Agent may reasonably require to verify that each Loan Party and the General Partner is duly organized or formed, validly existing, in good standing in the jurisdiction of its organization;
(v) a certificate signed by an a Responsible Officer of the certificate Borrower certifying (A) that the representations and warranties contained in Article V are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if anywarranties that are already qualified as to materiality in the text thereof) of each Loan Party certified on and as of a recent date by the Secretary such date, (B) no Default or Event of State of the state of formation Default has occurred and is continuing as of such Loan Party;
date, (viC) since December 31, 2011 there has occurred no event or condition that has had or could be reasonably expected to have, either individually or in the aggregate, a certificate of good standing Material Adverse Effect, (D) there is no litigation, investigation or certificate of similar meaning) with respect proceeding known to each Loan Party issued as of a recent date by and affecting the Secretary of State of Borrower or any Borrower Affiliate for which the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party Borrower is required to give notice pursuant to Section 6.03(b) (or, if there is any such litigation, investigation or proceeding, then a notice containing the information required by Section 6.03(b) shall be so qualified given concurrently with the delivery of the certificate given pursuant to this clause (v)), and where failure to be so qualified (E) no action, suit, investigation or proceeding is pending or threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower or any Borrower Affiliate, or any of their respective properties, that could reasonably be expected to have a Material Adverse Effect;
(vi) receipt of audited financial statements of the MLP as of December 31, 2011, unaudited financial statements of the MLP as of June 30, 2012, and such other financial information as the Administrative Agent may reasonably request;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary opinions from (or other individual performing similar functionsi) of Xxxxxx & Xxxxxx LLP, counsel to each Loan Party with respect and the General Partner, and (ii) Xxxxxxxx Xxxx-Xxxxxx, counsel to each of the officers of such Loan Party authorized and the General Partner, in each case, addressed to execute the Administrative Agent and deliver each Lender, as to the matters concerning the Loan Parties and the Loan Documents to which such Loan Party is a party, in as the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of ContinuationAdministrative Agent may reasonably request;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) evidence of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance termination of the Loan Documents to which it is a party;Commitments as defined in Existing Credit Agreement and repayment or refinancing of all loans thereunder simultaneously with the Closing Date; and
(ix) [intentionally omitted];such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and at least 45 days prior to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) to the extent invoiced at least one (1) Business Day prior to the Closing Date, evidence that all accrued costs, Any fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable to the Administrative Agent, the Lead Arranger and the Lenders on at the Closing Date shall have been paid; and.
(xvc) all necessary information in connection The Borrower shall have paid Attorney Costs of the Administrative Agent to the extent invoiced prior to, or on, the Closing Date. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the Patriot Actconditions specified in this Section 4.01, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification)each Lender that has signed this Agreement shall be deemed to have consented to, “know your customer” requirements, and other customary requirements, in each case approved or accepted or to be delivered 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 Loan Parties not later than five (5) Business Days Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date to specifying its objection thereto. The Administrative Agent shall notify the extent such information is requested not later than ten (10) Business Days prior to Borrower and the Lenders of the Closing Date; and
(b) (i) there , and such notice shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood conclusive and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);binding.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Sunoco Logistics Partners L.P.)
Conditions to Closing Date. The effectiveness occurrence of this Agreement the Closing Date is subject to the satisfaction (or waiver waiver) of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The Administrative Agent shall have received each Agent’s receipt of the following:, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (to the extent applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of this Agreement executed by from the Borrower, each of Closing Date Guarantor, each Lender and the parties heretoAdministrative Agent;
(ii) if requested Notes executed by any the Borrower in favor of each Lender pursuant to Section 2.12.(a) requesting Notes at least three (3) days Business Days prior to the date hereof, a Note executed by the Borrowers, payable to such Lender and complying with the terms of Section 2.12.(a)Closing Date;
(iii) a fully executed copy certificate of each Loan Party, substantially in the Merger Agreement;
(iv) an opinion of Hogan Lovells LLP, counsel to the Company and the other Loan Parties, addressed form delivered to the Administrative Agent and as a condition to the Lenders and effectiveness of the November 2019 Credit Agreement (or in such other form and substance reasonably satisfactory to the Administrative Agent), executed by any Responsible Officer of such Loan Party, including or attaching the documents referred to in subclause (iv) below;
(viv) the certificate or articles a copy of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if anyA) each Organization Document of each Loan Party certified certified, to the extent applicable, as of a recent date reasonably acceptable to the Administrative Agent by the Secretary of State applicable Governmental Authority, (B) signature and incumbency certificates of the state of formation of such Loan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) Responsible Officers of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver executing the Loan Documents to which such Loan Party it is a party, in (C) resolutions of the case Board of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing Directors and/or similar functions) governing bodies of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity approving and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize authorizing the execution, delivery and performance of the Loan Documents to which it is a party;, certified by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (D) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation; and
(ixv) [intentionally omitted];a customary written opinion (addressed to the Administrative Agent and the Lenders) of (i) Xxxxxxxx, Lipton, Xxxxx & Xxxx, special counsel for the Loan Parties and (ii) Xxxxxx LLP (or such other counsel as is reasonably acceptable to the Administrative Agent), California counsel for the Loan Parties. The Borrower hereby requests such counsels to deliver such opinions.
(xb) [intentionally omitted];The Administrative Agent shall have received, to the extent invoiced at least three Business Days prior to the Closing Date (except as otherwise reasonably agreed by the Borrower), reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel for the Administrative Agent) required to be reimbursed or paid by any Loan Party under any Loan Document.
(xic) The Administrative Agent and the Arrangers shall have received all documentation at least three Business Days prior to the Closing Date and other information about the Loan Parties that shall have been reasonably requested by the Administrative Agent or an Arranger in writing at least 10 Business Days prior to the Closing Date and that the Administrative Agent or such Arranger reasonably determines is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(d) The January 2021 Refinancing shall have been consummated, or substantially simultaneously with the Closing Date shall be consummated.
(e) The Administrative Agent shall have received a Solvency Certificate certificate from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited Borrower in the form attached as Exhibit B hereto certifying that the Borrower and the Subsidiaries on a consolidated balance sheets and related statements of income, changes in equity and cash flows basis after giving effect to the January 2021 Transactions are Solvent. The occurrence of the Parent for Closing Date shall be confirmed by a written notice from the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and at least 45 days prior Administrative Agent to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) to the extent invoiced at least one (1) Business Day prior to the Closing Date, evidence that all accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable to the Administrative Agent, the Lead Arranger Borrower and the Lenders on the Closing Date Date, and shall be conclusive evidence of the occurrence thereof. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have been paid; and
(xv) all necessary information in connection with the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each case to be delivered by the Loan Parties not later than five (5) Business Days received notice from such Lender prior to the proposed Closing Date to the extent such information is requested not later than ten (10) Business Days prior to the Closing Date; and
(b) (i) there shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of specifying its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Broadcom Inc.)
Conditions to Closing Date. The effectiveness of this Agreement is and the obligations of each Lender hereunder are subject to the satisfaction (or waiver waiver) of the following conditions precedent precedent, except as otherwise agreed between the Lead Borrower and the Administrative Agent:
(and upon 1) The Administrative Agent’s receipt of the satisfaction or waiver following, each of such conditions, the Closing Date which shall be deemed to have occurred):originals, facsimiles or copies in .pdf format (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party:
(a) The Administrative Agent shall have received a Committed Loan Notice and a Note executed by the Borrowers in favor of each Lender that has requested a Note prior to the Closing Date;
(b) executed counterparts of this Agreement and the following:Guaranty;
(c) each Collateral Document set forth on Schedule 4.01(1)(c) required to be executed on the Closing Date as indicated on such schedule, duly executed by each Loan Party that is party thereto, together with (subject to Section 6.13(2)):
(i) counterparts of this Agreement executed by each certificates, if any, representing the Pledged Collateral that is certificated equity of the parties heretoBorrowers and the Loan Parties’ Domestic Subsidiaries accompanied by undated stock powers executed in blank;
(ii) if requested by any Lender pursuant to Section 2.12.(a) at least three (3) days prior to evidence that all UCC-1 financing statements in the date hereof, a Note executed by the Borrowers, payable to such Lender and complying with the terms jurisdiction of Section 2.12.(a);
(iii) a fully executed copy organization of the Merger Agreement;
(iv) an opinion of Hogan Lovells LLP, counsel to the Company and the other each Loan Parties, addressed to Party that the Administrative Agent and the Lenders Collateral Agent may deem reasonably necessary to satisfy the Collateral and Guarantee Requirement shall have been provided for, and arrangements for the filing thereof in form and substance a manner reasonably satisfactory to the Administrative AgentAgent shall have been made; and
(iii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect and the Administrative Agent and Collateral Agent have been named as loss payee and additional insured under each insurance policy with respect to which the Administrative Agent shall have requested to be so named;
(vd) certificates of good standing from the certificate or articles secretary of incorporation or formation, articles state of organization, certificate the state of limited partnership or other comparable organizational document (if any) organization of each Loan Party certified as of a recent date by (to the Secretary of State of the state of formation of extent such Loan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each concept exists in such Loan Party and jurisdiction), customary certificates of qualification to transact business resolutions or other comparable action, incumbency certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) certificates of Responsible Officers of each Loan Party with respect to each certifying true and complete copies of the officers Organizational Documents attached thereto and evidencing the identity, authority and capacity of such Loan Party each Responsible Officer thereof authorized to execute act as a Responsible Officer in connection with this Agreement and deliver the other Loan Documents to which such Loan Party is a party, in party or is to be a party on the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of ContinuationClosing Date;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) [intentionally omitted];
(x) [intentionally omitted];
(xie) a Solvency Certificate customary legal opinion from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and at least 45 days prior to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) to the extent invoiced at least one (1) Business Day prior to the Closing Date, evidence that all accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable to the Administrative Agent, the Lead Arranger and the Lenders on the Closing Date shall have been paid; and
(xv) all necessary information in connection with the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each case to be delivered by the Loan Parties not later than five (5) Business Days prior to the Closing Date to the extent such information is requested not later than ten (10) Business Days prior to the Closing Date; and
(b) (i) there shall not have occurred on or after the Commitment Effective Date any amendmentsXxxxxx, modifications or waivers by PK Domestic LLC or any of its Affiliates ofXxxx & Xxxxxxxx LLP, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse counsel to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead ArrangerLoan Parties, such consent not to be unreasonably withheld, delayed or conditioned (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease each local counsel to the Loan Parties listed on Schedule 4.01(1)(e) in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests jurisdictions indicated on such schedule;
(f) a certificate of a Responsible Officer of Holdings certifying that each of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitmentsconditions set forth in Sections 4.01(5), in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage4.02(1) and 4.02
(b2) any (i) amendment or modification to the definition has been satisfied as of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);date; and
Appears in 1 contract
Samples: Credit Agreement (Chobani Inc.)
Conditions to Closing Date. The effectiveness obligations of this Agreement is subject each Lender to make any extension of credit hereunder on the satisfaction or waiver Closing Date shall not become effective until the date on which each of the following conditions precedent is satisfied (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurredwaived in accordance with Section 9.02):
(a) The Administrative Agent shall have received from each of the following:
Loan Party either (i) counterparts a counterpart of this Agreement executed by each signed on behalf of the parties hereto;
such party or (ii) if requested by any Lender pursuant evidence satisfactory to Section 2.12.(athe Administrative Agent (which may include a facsimile or other electronic transmission) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent and the Arrangers shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Loan Parties as has been reasonably requested in writing at least ten (10) days prior to the date hereof, a Note executed Closing Date by the BorrowersAdministrative Agent or the Arrangers that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, payable to such Lender and complying with including the terms of Section 2.12.(a);PATRIOT Act.
(iiic) The Administrative Agent shall have received a fully executed copy certificate relating to the organization, existence and good standing of the Merger Agreement;
Company and each other Loan Party, the authorization of the Transactions and other legal matters relating to the Company and each other Loan Party, the Loan Documents or the Transactions (ivas applicable), substantially in the form attached hereto as (x) an opinion in the case of Hogan Lovells LLPthe Designated Borrower as of the Closing Date, counsel to Exhibit J-1, and (y) in the case of the Company and the other Loan PartiesParties (other than such Designated Borrower), Exhibit J-2.
(d) The Administrative Agent shall have received a customary favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Closing Date) of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Loan Parties, as to matters of New York law and English law, in each case in form and substance reasonably satisfactory to the Administrative Agent;.
(ve) The Administrative Agent and the certificate or articles of incorporation or formationArrangers shall have received (including, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a recent date requested by the Secretary Company, by way of State off-set against the proceeds of the state of formation of such Loan Party;
(viLoans) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party all fees and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is reasonable out-of-pocket amounts required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary paid on or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, in the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) [intentionally omitted];
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and at least 45 days prior to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) , including, to the extent invoiced at least one three (1) Business Day prior to the Closing Date, evidence that all accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable to the Administrative Agent, the Lead Arranger and the Lenders on the Closing Date shall have been paid; and
(xv) all necessary information in connection with the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each case to be delivered by the Loan Parties not later than five (53) Business Days prior to the Closing Date (except as otherwise agreed to by the extent such information is requested not later than ten Company), payment or reimbursement of all fees and reasonable out-of-pocket expenses (10including the reasonable and documented fees, charges and disbursements of counsel) Business Days required to be paid or reimbursed by any Loan Party on or prior to the Closing Date.
(f) The Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate, dated the Closing Date and signed by an Authorized Officer of the Company, together with all attachments contemplated thereby, including the IP Security Agreements and the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search. Notwithstanding anything to the contrary in this Agreement, to the extent any security interest in any Collateral is not or cannot be provided or perfected on the Closing Date (including the requirement of clause (e) of the definition of “Collateral and Guarantee Requirement”) (other than the pledge and perfection of the security interest in (A) the Equity Interests of any Loan Party’s direct wholly-owned Significant Subsidiaries (to the extent required to be pledged pursuant to the definition of the term “Collateral and Guarantee Requirement”) or (B) other assets pursuant to which a Lien may be perfected by the filing of a financing statement under the Uniform Commercial Code) after the use of commercially reasonable efforts to do so or without undue burden or expense, then the provision or perfection of a security interest in such Collateral shall not constitute a condition precedent to the availability of the Facilities on the Closing Date but instead shall be required to be provided or delivered not later than ninety (90) days after the Closing Date (or such later date as agreed by the Administrative Agent) pursuant to arrangements to be mutually agreed by the Administrative Agent and the Company acting reasonably.
(g) The Administrative Agent shall have received a certificate, dated as of the Closing Date, and signed by an Authorized Officer of the Company, certifying that:
(i) 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 that any Specified Representation is qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification, the same shall be true and correct in all respects;
(ii) the Specified GCA Acquisition Agreement Representations shall be true and correct as of the Closing Date;
(iii) since July 11, 2017, there shall not have been a “Material Adverse Effect” (as defined in the GCA Acquisition Agreement as in effect on July 11, 2017); and
(biv) (i) there the GCA Acquisition shall not have occurred on been consummated pursuant to the GCA Acquisition Agreement, substantially concurrently with the initial funding of the Facilities, and no provision thereof shall have been amended or after the Commitment Effective Date waived, and no consent shall have been given thereunder, in any amendments, modifications or waivers by PK Domestic LLC or any of its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are manner materially adverse to the Lenders interests of the Arrangers or the Lead Arranger in their respective capacities Lenders without the prior written consent of the Lead Arranger, Arrangers (such consent not to be unreasonably withheld, delayed or conditioned conditioned).
(it being understood and agreed that (ah) any The Administrative Agent shall have received (i) increase a certificate in the aggregate cash consideration to be paid under form attached hereto as Exhibit H, dated as of the Merger Agreement Closing Date and signed by the chief financial officer or other officer with similar duties (including the “Cash Merger Consideration”)corporate vice president of finance) of the Company, if funded with equity shall not be deemed to be materially adverse as to the interests solvency of the Lenders Company and the Lead Arranger and shall not require the consent of the Lead Arranger Subsidiaries on a consolidated basis after giving effect to the extent funded by equity only GCA Acquisition and (ii) any decrease in a duly completed and executed Borrowing Request from the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any applicable Borrowers.
(i) amendment or modification to The Arrangers shall have received (i) the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), Required Financials and (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Company or any affiliate thereof that would but as of and for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse the twelve month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 75 days prior to the LendersClosing Date (or ninety (90) days in case such four-fiscal quarter period is the end of GCA’s fiscal year);, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income).
(j) The Administrative Agent shall have received a pay-off letter in form and substance reasonably satisfactory to the Administrative Agent in respect of the Existing Credit Agreement, confirming that all Liens upon any of the property of the Loan Parties constituting Collateral will be terminated concurrently with the payment of existing Indebtedness thereunder from the proceeds of the initial Borrowing (and, if applicable, all issued and outstanding letters of credit thereunder shall have been cash collateralized, supported by a Letter of Credit or reevidenced as “Letters of Credit” hereunder issued on the Closing Date).
(k) The Administrative Agent shall have received reasonably satisfactory evidence that prior to or substantially concurrently with the Closing Date, the GCA Refinancing shall be consummated. The Administrative Agent shall promptly notify the Lenders of the Closing Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions to Closing Date. The effectiveness obligation of this Agreement each Lender (including each Issuing Bank) to make Loans hereunder is subject to the satisfaction (or waiver in accordance with Section 9.08) of the following conditions precedent (and upon and, in the satisfaction or waiver case of each document specified in this Section to be received by the Administrative Agent, such conditions, the Closing Date document shall be deemed to have occurred):
(a) The Administrative Agent shall have received each of the following:
(i) counterparts of this Agreement executed by each of the parties hereto;
(ii) if requested by any Lender pursuant to Section 2.12.(a) at least three (3) days prior to the date hereof, a Note executed by the Borrowers, payable to such Lender and complying with the terms of Section 2.12.(a);
(iii) a fully executed copy of the Merger Agreement;
(iv) an opinion of Hogan Lovells LLP, counsel to the Company and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent) on the Closing Date:
(a) The Administrative Agent shall have received, on behalf of itself, the Lenders, a customary written opinion, in each case (A) dated the Closing Date and (B) addressed to the Administrative Agent and the Lenders, of:
(i) Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, United States counsel for the Borrower and the Guarantors;
(ii) Fxxxx & Lardner LLP, special U.S. counsel for the Borrower and the Mortgaged Vessel Owning Subsidiaries owning U.S. flag Mortgaged Vessels;
(iii) Sxxxx & Wxxxxx LLP, special Nevada counsel for the Guarantors organized under the laws of the State of Nevada;
(iv) Cxxxxxx Dxxx & Pxxxxxx LLP, special Cayman Islands counsel for the Borrower and the Guarantors organized under the laws of the Cayman Islands; and
(v) Qxxxxxx & Pxxxx, special Ecuador counsel for the Guarantors organized under the laws of the Republic of Ecuador.
(b) Holdings, the Borrower and the Lenders shall have delivered to the Administrative Agent an executed counterpart of this Agreement, the Borrower shall have delivered to the Administrative Agent an executed counterpart of the Agent Fee Letter and each Loan Party shall have delivered to the Administrative Agent and executed counterpart of each other Loan Document entered into on the Closing Date to the extent such Loan Party is a party thereto.
(c) The Administrative Agent shall have received (i) a solvency certificate in the form of Exhibit E from the chief financial officer of the Borrower and (ii) a perfection certificate with respect to the Loan Parties relating to the Collateral.
(d) The Administrative Agent shall have received (i) a copy of the certificate or articles of incorporation or certificate of formation, articles of organizationas applicable, certificate of limited partnership or other comparable organizational document (if any) including all amendments thereto, of each Loan Party Party, certified as of a recent date by the Secretary of State or equivalent of the state of formation its organization, and a certificate as to the good standing of each Loan Party as of a recent date, from such Loan Party;
Secretary of State (vior a comparable government official, as applicable); (ii) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of dated the officers of such Loan Party authorized to execute Closing Date and deliver the Loan Documents to which such Loan Party is a party, in the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of certifying (A) that attached thereto is a true and complete copy of the by-laws laws, memorandum and articles of association or other operating agreement, as applicable, of such Loan Party, if including all amendments thereto, as in effect on the Closing Date and at all times since a corporation, date prior to the operating agreement, if a limited liability company, date of the partnership agreement, if a limited or general partnership, or other comparable document resolutions described in the case of any other form of legal entity and clause (B) all corporatebelow, partnership(B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors or members, member or other necessary action taken by as applicable, of such Loan Party to authorize authorizing the execution, delivery and performance of the Loan Documents to which it such person is a party;
(ix) [intentionally omitted];
(x) [intentionally omitted];
(xi) a Solvency Certificate from party and, in the chief financial officer case of the Parent;
Borrower, the borrowings hereunder, and that such resolutions have not been modified, supplemented, rescinded or amended and are in full force and effect, and that no other resolutions have been adopted and no other actions have been approved by the board of directors or members, as applicable, of such Loan Party with respect to the transactions contemplated under the Loan Documents , (xiiC) [intentionally omitted];
(a) GAAP audited consolidated balance sheets that the certificate or articles of incorporation, certificate of formation or other constitutional documentation, as applicable, of such Loan Party, and related statements of income, changes all such amendments thereto as in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and at least 45 days prior to effect on the Closing Date; provided that , have not been amended since the Parent’s public filing date of the last amendment thereto as certified in accordance with clause (i) above, and (D) as to the incumbency and specimen signature of each officer executing any required financial statements with the SEC shall constitute delivery Loan Document or any other document delivered in connection herewith on behalf of such financial statements for purposes Loan Party; and (iii) a certificate of this Section 6.1.(I)(a)(xiii);another officer as to the incumbency and specimen signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii) above.
(xivi) All fees and other compensation payable pursuant to the Engagement Letter shall have been paid and (ii) all other costs, fees, expenses and other compensation payable to the Lenders, the Administrative Agent, the Collateral Trustee or the Lead Arrangers on the Closing Date, including pursuant to this Agreement, or any other Loan Document, to the extent documented and invoiced in reasonable detail at least one (1) three Business Day Days prior to the Closing Date, evidence that all accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable to the Administrative Agent, the Lead Arranger and the Lenders on the Closing Date shall have been paid; and.
(xvf) The Lenders shall have received the financial statements referred to in Section 3.05.
(g) At least three Business Days prior to the Closing Date, each Loan Party shall have provided to the Lenders all necessary information in connection with the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, documentation and other customary requirements, information theretofore requested in each case to be delivered writing by the Loan Parties not later than five (5) Administrative Agent at least ten Business Days prior to the Closing Date to that is required by regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including the extent such information is requested not later than ten USA PATRIOT Act.
(10h) Business Days prior to The Administrative Agent shall have received a certificate, dated the Closing Date and signed by the chief executive officer or a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in Sections 4.01(b) and (c).
(i) The Refinancing shall have occurred (or shall occur substantially contemporaneously with the occurrence of the Closing Date; and).
(bj) The Administrative Agent shall have received, for the ratable account of each Lender, an upfront fee equal to 0.50% of such Lender’s Revolving Credit Commitment on the Closing Date.
(ik) there The Indenture shall not have occurred on or after the Commitment Effective Date any amendmentsbe in full force and effect, modifications or waivers by PK Domestic LLC or any of its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and Notes thereunder shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);have been issued.
Appears in 1 contract
Samples: Revolving Credit Agreement (Lindblad Expeditions Holdings, Inc.)
Conditions to Closing Date. The effectiveness occurrence of this Agreement the Closing Date is subject to the satisfaction (or waiver waiver) of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The Administrative Agent shall have received each Agent’s receipt of the following:, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (to the extent applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of this Agreement executed by from each of Borrower and each Closing Date Guarantor, as applicable, each Lender and the parties heretoAdministrative Agent;
(ii) if requested Notes executed by any the Borrowers in favor of each Lender pursuant to Section 2.12.(a) requesting Notes at least three (3) days Business Days prior to the date hereof, a Note executed by the Borrowers, payable to such Lender and complying with the terms of Section 2.12.(a)Closing Date;
(iii) a fully certificate of each Loan Party, executed copy by any Responsible Officer of such Loan Party, including or attaching the Merger Agreementdocuments referred to in subclause (iv) below;
(iv) an opinion a copy of Hogan Lovells LLP(A) each Organization Document of each Loan Party certified, counsel to the Company and the other Loan Partiesextent applicable, addressed as of a date reasonably acceptable to the Administrative Agent by the applicable Governmental Authority, (B) signature and incumbency certificates of the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) Responsible Officers of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver executing the Loan Documents to which such Loan Party it is a party, in (C) resolutions of the case Board of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing Directors and/or similar functions) governing bodies of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity approving and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize authorizing the execution, delivery and performance of the Loan Documents to which it is a party;, certified by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (D) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation; and
(ixv) [intentionally omitted];a customary written opinion (addressed to the Administrative Agent and the Lenders) of (A) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, special counsel for the Loan Parties and (B) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special Massachusetts counsel for the Loan Parties. The Borrowers hereby request such counsels to deliver such opinions.
(xb) [intentionally omitted];The Administrative Agent shall have received, to the extent invoiced at least three Business Days prior to the Closing Date (except as otherwise reasonably agreed by the Borrowers), reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel for the Administrative Agent) required to be reimbursed or paid by any Loan Party under any Loan Document.
(xic) The Administrative Agent and the Arrangers shall have received all documentation at least three Business Days prior to the Closing Date and other information about the Loan Parties that shall have been reasonably requested by the Administrative Agent or an Arranger in writing at least 10 Business Days prior to the Closing Date and that the Administrative Agent or such Arranger reasonably determines is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(d) To the extent a Solvency Certificate Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, such Borrower shall deliver to each Lender that so requests (which request is made through the Administrative Agent), a Beneficial Ownership Certification in relation to such Borrower; provided that the Administrative Agent has provided such Borrower a list of each such Lender and its electronic delivery requirements at least five Business Days prior to the Closing Date (it being agreed that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause shall be deemed to be satisfied with respect to such Lender).
(e) The Administrative Agent shall have received a certificate from the chief financial officer of the Parent;Company in the form attached as Exhibit B hereto certifying that the Company and the Subsidiaries on a consolidated basis after giving effect to the Transactions are Solvent.
(xiif) [intentionally omitted];
The Administrative Agent shall have received a certificate from a Responsible Officer of the Company certifying compliance as of the Closing Date with the conditions set forth in clauses (a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of incomeSection 4.03.
(g) The VMware Spin shall have been consummated, changes in equity and cash flows or substantially simultaneously with the Closing Date shall be consummated.
(h) The Closing Date Refinancing shall have been consummated, or substantially simultaneously with the Closing Date shall be consummated. The occurrence of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and at least 45 days prior Closing Date shall be confirmed by a written notice from the Administrative Agent to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) to the extent invoiced at least one (1) Business Day prior to the Closing Date, evidence that all accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable to the Administrative Agent, the Lead Arranger Company and the Lenders on the Closing Date Date, and shall be conclusive evidence of the occurrence thereof. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have been paid; and
(xv) all necessary information in connection with the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each case to be delivered by the Loan Parties not later than five (5) Business Days received notice from such Lender prior to the proposed Closing Date to the extent such information is requested not later than ten (10) Business Days prior to the Closing Date; and
(b) (i) there shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of specifying its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);objection thereto.
Appears in 1 contract
Conditions to Closing Date. The effectiveness of this This Agreement is subject shall not become effective to amend and restate the satisfaction or waiver of Existing Credit Agreement until the Borrower has satisfied the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The Administrative Agent shall have received all of the following, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent (provided that each of the following:following may be delivered as originals or .pdf copies or other facsimiles with originals to follow promptly):
(i) counterparts of this Agreement executed by the Borrower and each of the parties heretoLender;
(ii) if requested by any Lender pursuant to Section 2.12.(a) at least three (3) days prior to the date hereofSubsidiary Guaranty, a Note executed by the Borrowers, payable to such Lender and complying with the terms of Section 2.12.(a)parties thereto;
(iii) a fully Note executed copy by the Borrower in favor of the Merger Agreementeach Lender requesting a Note;
(iv) an such certificate of resolutions or other action, incumbency certificate and/or other certificates of Responsible Officers of the Borrower and each Guarantor as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower or such Guarantor is a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower and each Guarantor are duly organized or formed, and that the Borrower and each Guarantor are validly existing, in good standing and qualified to engage in business in its jurisdiction of formation;
(vi) a favorable opinion of Hogan Lovells LLP(A) Xxxxxx & Xxxxxx L.L.P., counsel to the Company Borrower and the other Loan PartiesGuarantors and (B) appropriate local counsel in jurisdictions reasonably requested by the Administrative Agent, in each case in form and substance satisfactory to Administrative Agent, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse EffectLender;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each a Responsible Officer of the officers of such Loan Party authorized to execute Borrower certifying that the conditions specified in Sections 4.01(b)(ii), 4.01(b)(iii), and deliver the Loan Documents to which such Loan Party is a party, in the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation4.01(g) have been satisfied;
(viii) copies certified a Solvency Certificate, signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance financial officer of the Loan Documents to which it is a partyBorrower or its general partner;
(ix) [intentionally omitted];a Loan Notice for any Borrowing to be made on the Closing Date; and
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer Closing Date Financial Statements. The public filing with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended or on the System for Electronic Document Analysis and Retrieval of any of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of incomeClosing Date Financial Statements, changes in equity and cash flows will satisfy the requirements hereunder with respect to such Closing Date Financial Statements. The Arrangers hereby acknowledge receipt of the Parent financial statements for the Borrower for the fiscal years ended December 31, 20162023, December 31, 2017 2022 and December 31, 2018 2021 and NuStar for the fiscal year ended December 31, 2023.
(b) GAAP unaudited consolidated balance sheets Both before and related after giving effect to the Transactions, the following statements shall be true and correct as of income, changes in equity and cash flows of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and at least 45 days prior to the Closing Date: (i) to the extent required by the definition thereof, the Acquisition Agreement Representations shall be true and correct in all material respects (except to the extent any such Acquisition Agreement Representation is qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the Closing Date (although any Acquisition Agreement Representation which expressly relates to a given date or period shall be required only to be true and correct in all material respects as of the respective date or for the respective period, as the case may be), (ii) the Specified Representations shall be true and correct in all material respects (except to the extent that any such Specified Representation or Acquisition Agreement Representation is qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the Closing Date (although any Specified Representation which expressly relates to a given date or period shall be required only to 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 the Parent’s public filing and (iii) no Event of any required financial statements with the SEC Default under Section 8.01(a), 8.01(b) or 8.01(i) shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);have then occurred and be continuing.
(xivc) All out-of-pocket costs, fees, expenses (including, without limitation, reasonable and documented legal fees and expenses) to the extent invoiced at least one two (1) Business Day prior to the Closing Date, evidence that all accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable to the Administrative Agent, the Lead Arranger and the Lenders on the Closing Date shall have been paid; and
(xv) all necessary information in connection with the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each case to be delivered by the Loan Parties not later than five (52) Business Days prior to the Closing Date and the fees contemplated by the Fee Letters payable to the Arrangers, the Administrative Agent or the Lenders shall have been paid on or prior to the Closing Date, in each case, to the extent such information is required by hereunder or by any Fee Letter to be paid on or prior to the Closing Date.
(d) The Lenders shall have received at least three (3) Business Days prior to the Closing Date, to the extent requested not later than in writing at least ten (10) Business Days prior to the Closing Date; and, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act.
(be) If the Borrower or any Guarantor qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, to the extent requested by any Lender at least ten (i10) there Business Days prior to the Closing Date, each Lender that so requests shall not have occurred on received a Beneficial Ownership Certification in relation to the Borrower or such Guarantor at least three (3) Business Days prior to the Closing Date.
(f) All security interests and Liens of the Borrower and the other Loan Parties granted in favor of Bank of America, as collateral agent securing payment or performance of the Existing Obligations shall have been released and terminated and of no further force or effect. On the Closing Date, after giving effect to the Commitment Effective Transactions, neither the Borrower nor any of its Subsidiaries shall have any material outstanding Indebtedness for borrowed money (other than Indebtedness permitted hereunder and permitted to remain outstanding under the Acquisition Agreement).
(g) Prior to or substantially concurrently with the Closing Date, the Closing Date Acquisition shall have been consummated, without giving effect to any amendments, modifications modifications, supplements or waivers by PK Domestic LLC the Borrower or NuStar (or any of its Affiliates of, their respective affiliates) to the Acquisition Agreement or consents by PK Domestic LLC the Borrower or NuStar (or any of its Affiliates undertheir respective affiliates) thereunder, the Merger Agreement in each case, that are materially adverse to the interests of the Lenders or the Lead Arranger Arrangers, in their respective capacities as such without the each Arranger’s prior written consent (not to be unreasonably withheld, conditioned or delayed) (it being understood and agreed that, without prejudice to any of the Lead Arrangerother conditions set forth in this Section 4.01, (i) any change in the definition of “Partnership Material Adverse Effect” in the Acquisition Agreement shall be deemed to be materially adverse to the Lenders and the Arrangers, in their capacities as such, unless the Arrangers shall have provided their written consent thereto (such consent not to be unreasonably withheld, delayed conditioned or conditioned delayed) and (it being understood and agreed that (aii) any modification, amendment or express waiver or consents by the Borrower or NuStar (ior any of their respective affiliates) that results in (A) an increase in to the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if purchase price of not more than 10% or that is funded with common equity of the Borrower shall not be deemed not to be materially adverse to the interests of the Lenders and Lenders, or the Lead Arranger and shall Arrangers, in their capacities as such, so long as such increase is not require the consent funded with proceeds of the Lead Arranger indebtedness or (B) a decrease to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration exchange ratio of not more than 10% shall not be deemed not to be materially adverse to the interests Arrangers and the Lenders.
(h) Since the date of the Lenders and Acquisition Agreement, there shall not have occurred a Partnership Material Adverse Effect (as defined in the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any Acquisition Agreement).
(i) amendment or modification Prior to the definition Closing Date, the Administrative Agent shall have received evidence reasonably satisfactory to it that each of “Company Material Adverse Effect” the (as such term is defined in the Merger i) NuStar Credit Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”NuStar Receivables Facility, or and (iii) action NuStar Receivables Purchase Agreement shall have been amended, to the extent necessary, to (A) permit the Closing Date Acquisition and the execution and delivery of, and performance and incurrence of Indebtedness under each of this Agreement and the Closing Date Senior Notes and (B) cause the terms thereof to not constitute a violation of, or omission taken at a default under, any Loan Document or the request Closing Date Senior Notes. On the Closing Date, after giving effect to the Transactions, neither NuStar nor any of its Subsidiaries shall have any material outstanding Indebtedness for borrowed money (other than Indebtedness subject to the Acquired Business Debt Refinancing and any Indebtedness permitted hereunder and permitted to remain outstanding under the Acquisition Agreement, including without limitation the Indebtedness listed on Schedule 7.01).
(j) The Borrower shall have received the net cash proceeds from the issuance of the Company or any affiliate thereof Closing Date Senior Notes. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that would but for such request constitute a “Company Material Adverse Effect”, has executed and delivered this Agreement shall in each case be deemed to have consented to, approved or accepted or to be materially adverse 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. Upon the effectiveness of this Agreement, (a) each Lender who holds Loans in an aggregate amount less than its Applicable Percentage (after giving effect to this amendment and restatement) of all Loans shall advance new Loans which shall be disbursed to the Administrative Agent and used to repay Loans outstanding to each Lender who holds Loans in an aggregate amount greater than its Applicable Percentage of all Loans, (b) each Lender’s participation in each Letter of Credit shall be automatically adjusted to equal its Applicable Percentage (after giving effect to this amendment and restatement), and (c) such other adjustments shall be made as the Administrative Agent shall specify so that each Lender’s outstanding amount of Loans and LC Obligations equals its Applicable Percentage (after giving effect to this amendment and restatement) of the total outstanding amount of Loans and LC Obligations of all of the Lenders);.
Appears in 1 contract
Conditions to Closing Date. The effectiveness occurrence of this Agreement the Closing Date is subject to the satisfaction or waiver of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent shall have received and each of the followingLenders:
(i) executed counterparts of this Agreement executed by Agreement, sufficient in number for distribution to the Administrative Agent, each of Lender and the parties heretoBorrower;
(ii) if requested by any Lender pursuant to Section 2.12.(a) at least three (3) days prior to the date hereof, a Note executed by the Borrowers, payable to such Borrower in favor of each Lender and complying with the terms of Section 2.12.(a)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 the identity, authority and capacity of each Responsible Officer thereof authorized to act as a fully executed copy of Responsible Officer in connection with this Agreement and the Merger Agreementother Loan Documents to which such Loan Party is a party;
(iv) an copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Loan Parties is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(v) a favorable opinion of Hogan Lovells Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Company and the other Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may request;
(vi) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a), (b), and (c) 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; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2017, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be paid hereunder or under the Fee Letter on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of any Loan on the Closing Date).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 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 on and as of the Closing Date.
(e) No Default shall exist, or would result from, any Borrowing on the Closing Date or from the application of the proceeds thereof.
(f) There shall not have occurred any 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.
(g) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(h) The Parent REIT and the Borrower shall have entered into (i) the US Bank Facility, the Bank of America Facility, the Capital One Facility and the US Bank Lessee Line of Credit and (ii) a conforming amendment to the Senior Notes, each in form and substance reasonably satisfactory to the Administrative Agent;
(v) . Without limiting the certificate generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or articles of incorporation accepted or formationto be satisfied with, articles of organization, certificate of limited partnership each document or other comparable organizational document (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is matter required thereunder to be so qualified and where failure consented to be so qualified could reasonably be expected or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of received notice from such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, in the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) [intentionally omitted];
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and at least 45 days Lender prior to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) to the extent invoiced at least one (1) Business Day prior to the Closing Date, evidence that all accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable to the Administrative Agent, the Lead Arranger and the Lenders on the proposed Closing Date shall have been paid; and
(xv) all necessary information in connection with the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each case to be delivered by the Loan Parties not later than five (5) Business Days prior to the Closing Date to the extent such information is requested not later than ten (10) Business Days prior to the Closing Date; and
(b) (i) there shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of specifying its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);objection thereto.
Appears in 1 contract
Conditions to Closing Date. The effectiveness obligations of this Agreement is subject each Lender to make any extension of credit hereunder on the satisfaction or waiver Closing Date shall not become effective until the date on which each of the following conditions precedent is satisfied (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurredwaived in accordance with Section 9.02):
(a) The Administrative Agent shall have received from each of the following:
Loan Party either (i) counterparts a counterpart of this Agreement executed by each signed on behalf of the parties hereto;
such party or (ii) if requested by any Lender pursuant evidence satisfactory to Section 2.12.(athe Administrative Agent (which may include a facsimile or other electronic transmission) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent and the Arrangers shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Loan Parties as has been reasonably requested in writing at least ten (10) days prior to the date hereof, a Note executed Closing Date by the BorrowersAdministrative Agent or the Arrangers that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, payable to such Lender and complying with including the terms of Section 2.12.(a);PATRIOT Act.
(iiic) The Administrative Agent shall have received a fully executed copy certificate relating to the organization, existence and good standing of the Merger Agreement;
Company and each other Loan Party, the authorization of the Transactions and other legal matters relating to the Company and each other Loan Party, the Loan Documents or the Transactions (ivas applicable), substantially in the form attached hereto as (x) an opinion in the case of Hogan Lovells LLPthe Designated Borrower as of the Closing Date, counsel to Exhibit J-1, and (y) in the case of the Company and the other Loan PartiesParties (other than such Designated Borrower), Exhibit J-2.
(d) The Administrative Agent shall have received a customary favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Closing Date) of Dxxxx Xxxx & Wxxxxxxx LLP, counsel for the Loan Parties, as to matters of New York law and English law, in each case in form and substance reasonably satisfactory to the Administrative Agent;.
(ve) The Administrative Agent and the certificate or articles of incorporation or formationArrangers shall have received (including, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a recent date requested by the Secretary Company, by way of State off-set against the proceeds of the state of formation of such Loan Party;
(viLoans) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party all fees and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is reasonable out-of-pocket amounts required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary paid on or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, in the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) [intentionally omitted];
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and at least 45 days prior to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) , including, to the extent invoiced at least one three (1) Business Day prior to the Closing Date, evidence that all accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable to the Administrative Agent, the Lead Arranger and the Lenders on the Closing Date shall have been paid; and
(xv) all necessary information in connection with the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each case to be delivered by the Loan Parties not later than five (53) Business Days prior to the Closing Date (except as otherwise agreed to by the extent such information is requested not later than ten Company), payment or reimbursement of all fees and reasonable out-of-pocket expenses (10including the reasonable and documented fees, charges and disbursements of counsel) Business Days required to be paid or reimbursed by any Loan Party on or prior to the Closing Date.
(f) The Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate, dated the Closing Date and signed by an Authorized Officer of the Company, together with all attachments contemplated thereby, including the IP Security Agreements and the results of a search of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search. Notwithstanding anything to the contrary in this Agreement, to the extent any security interest in any Collateral is not or cannot be provided or perfected on the Closing Date (including the requirement of clause (e) of the definition of “Collateral and Guarantee Requirement”) (other than the pledge and perfection of the security interest in (A) the Equity Interests of any Loan Party’s direct wholly-owned Significant Subsidiaries (to the extent required to be pledged pursuant to the definition of the term “Collateral and Guarantee Requirement”) or (B) other assets pursuant to which a Lien may be perfected by the filing of a financing statement under the Uniform Commercial Code) after the use of commercially reasonable efforts to do so or without undue burden or expense, then the provision or perfection of a security interest in such Collateral shall not constitute a condition precedent to the availability of the Facilities on the Closing Date but instead shall be required to be provided or delivered not later than ninety (90) days after the Closing Date (or such later date as agreed by the Administrative Agent) pursuant to arrangements to be mutually agreed by the Administrative Agent and the Company acting reasonably.
(g) The Administrative Agent shall have received a certificate, dated as of the Closing Date, and signed by an Authorized Officer of the Company, certifying that:
(i) 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 that any Specified Representation is qualified by or subject to a “material adverse effect”, “material adverse change” or similar term or qualification, the same shall be true and correct in all respects;
(ii) the Specified GCA Acquisition Agreement Representations shall be true and correct as of the Closing Date;
(iii) since July 11, 2017, there shall not have been a “Material Adverse Effect” (as defined in the GCA Acquisition Agreement as in effect on July 11, 2017); and
(biv) (i) there the GCA Acquisition shall not have occurred on been consummated pursuant to the GCA Acquisition Agreement, substantially concurrently with the initial funding of the Facilities, and no provision thereof shall have been amended or after the Commitment Effective Date waived, and no consent shall have been given thereunder, in any amendments, modifications or waivers by PK Domestic LLC or any of its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are manner materially adverse to the Lenders interests of the Arrangers or the Lead Arranger in their respective capacities Lenders without the prior written consent of the Lead Arranger, Arrangers (such consent not to be unreasonably withheld, delayed or conditioned conditioned).
(it being understood and agreed that (ah) any The Administrative Agent shall have received (i) increase a certificate in the aggregate cash consideration to be paid under form attached hereto as Exhibit H, dated as of the Merger Agreement Closing Date and signed by the chief financial officer or other officer with similar duties (including the “Cash Merger Consideration”)corporate vice president of finance) of the Company, if funded with equity shall not be deemed to be materially adverse as to the interests solvency of the Lenders Company and the Lead Arranger and shall not require the consent of the Lead Arranger Subsidiaries on a consolidated basis after giving effect to the extent funded by equity only GCA Acquisition and (ii) any decrease in a duly completed and executed Borrowing Request from the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any applicable Borrowers.
(i) amendment or modification to The Arrangers shall have received (i) the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), Required Financials and (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Company or any affiliate thereof that would but as of and for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse the twelve month period ending on the last day of the most recently completed four-fiscal quarter period ended at least 75 days prior to the LendersClosing Date (or ninety (90) days in case such four-fiscal quarter period is the end of GCA’s fiscal year);, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income).
(j) The Administrative Agent shall have received a pay-off letter in form and substance reasonably satisfactory to the Administrative Agent in respect of the Existing Credit Agreement, confirming that all Liens upon any of the property of the Loan Parties constituting Collateral will be terminated concurrently with the payment of existing Indebtedness thereunder from the proceeds of the initial Borrowing (and, if applicable, all issued and outstanding letters of credit thereunder shall have been cash collateralized, supported by a Letter of Credit or reevidenced as “Letters of Credit” hereunder issued on the Closing Date).
(k) The Administrative Agent shall have received reasonably satisfactory evidence that prior to or substantially concurrently with the Closing Date, the GCA Refinancing shall be consummated. The Administrative Agent shall promptly notify the Lenders of the Closing Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions to Closing Date. The effectiveness occurrence of this Agreement the Closing Date is subject to the satisfaction or waiver of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent shall have received and each of the followingLenders:
(i) executed counterparts of this Agreement executed by Agreement, sufficient in number for distribution to the Administrative Agent, each of Lender and the parties heretoBorrower;
(ii) if requested by any Lender pursuant to Section 2.12.(a) at least three (3) days prior to the date hereof, a Note executed by the Borrowers, payable to such Borrower in favor of each Lender and complying with the terms of Section 2.12.(a)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 the identity, authority and capacity of each Responsible Officer thereof authorized to act as a fully executed copy of Responsible Officer in connection with this Agreement and the Merger Agreementother Loan Documents to which such Loan Party is a party;
(iv) an copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Loan Parties is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(v) a favorable opinion of Hogan Lovells Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Company and the other Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Lenders Loan Parties and in form and substance reasonably satisfactory to the Loan Documents as the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan PartyAgent may request;
(vi) a certificate of good standing (or certificate a Responsible Officer of similar meaning) with respect to each Loan Party issued as either (A) attaching copies of a recent date all consents, licenses and approvals required in connection with the execution, delivery and performance by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.01(d), (e) and (f) 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; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on March 31, 2015, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be so qualified maintained pursuant to the Loan Documents has been obtained and where failure is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be so qualified paid hereunder or under the Fee Letters on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of such initial Loan).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 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 on and as of the date of such Loan, 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 4.01, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.
(e) No Default shall exist, or would result from, any Borrowing on the Closing Date or from the application of the proceeds thereof.
(f) The Borrower shall be in compliance (on a Pro Forma Basis taking into account the applicable Loan) with the financial covenants set forth in Section 7.11.
(g) There shall not have occurred any 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.
(h) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect;.
(viii) The Administrative Agent shall have received a certificate Committed Loan Notice in accordance with the requirements hereof. Without limiting the generality of incumbency the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed by the Secretary this Agreement shall be deemed to have consented to, approved or Assistant Secretary (accepted or to be satisfied with, each document or other individual performing similar functions) of each Loan Party with respect matter required thereunder to each of be consented to or approved by or acceptable or satisfactory to a Lender unless the officers of Administrative Agent shall have received notice from such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, in the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) [intentionally omitted];
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and at least 45 days Lender prior to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) to the extent invoiced at least one (1) Business Day prior to the Closing Date, evidence that all accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable to the Administrative Agent, the Lead Arranger and the Lenders on the proposed Closing Date shall have been paid; and
(xv) all necessary information in connection with the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each case to be delivered by the Loan Parties not later than five (5) Business Days prior to the Closing Date to the extent such information is requested not later than ten (10) Business Days prior to the Closing Date; and
(b) (i) there shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of specifying its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);objection thereto.
Appears in 1 contract
Conditions to Closing Date. The effectiveness obligation of this Agreement each Lender to honor any Request for Credit Extension with respect to Committed Loans, is subject to the satisfaction or waiver of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) This Agreement shall have become effective as provided in Section 4.01.
(b) The Administrative Agent shall have received each Agent’s (or its counsel) receipt of the following:
, each of which shall be originals or telecopies (ifollowed promptly by originals) counterparts of this Agreement unless otherwise specified, each properly executed by each a Responsible Officer of the parties hereto;
Borrower (ii) if requested by any Lender pursuant to Section 2.12.(a) at least three as applicable), each dated the Closing Date (3) days prior to or, in the date hereofcase of certificates of governmental officials, a Note executed by recent date before the Borrowers, payable to such Lender Closing Date) and complying with the terms of Section 2.12.(a);
(iii) a fully executed copy of the Merger Agreement;
(iv) an opinion of Hogan Lovells LLP, counsel to the Company and the other Loan Parties, addressed to the Administrative Agent and the Lenders and each in form and substance reasonably satisfactory to the Administrative AgentAgent and the Arranger:
(i) a Request for Credit Extension in accordance with the requirements hereof;
(vii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iii) a solvency certificate substantially in the form attached hereto as Exhibit F, signed by the chief financial officer, chief accounting officer or other officer with equivalent duties of the Borrower acceptable to the Administrative Agent, attesting to the Solvency of the Borrower and its Subsidiaries before and after giving effect to the Transactions on the Closing Date;
(iv) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in clauses (c), (d), (e) and (f) of this Section 4.02(b) have been satisfied and (B) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document current Debt Ratings (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan Party);
(vic) (i) 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 certificate given date or period, such representation and warranty shall be true and correct in all material respects as of good standing 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 (a) the definition thereof shall be the definition of “Parent Material Adverse Effect” (as defined in the Acquisition Agreement) for purposes of the making or deemed making of such Specified Representation on, or as of, the Closing Date (or certificate of similar meaningany date prior thereto) with respect and (b) shall be true and correct (after giving effect to each Loan Party issued any qualification therein) in all respects on such date and (ii) Specified Acquisition Agreement Representations shall be true and correct as of a recent the Closing Date.
(d) Except as (i) set forth in the Company Disclosure Letter (as defined in the Acquisition Agreement) or (ii) disclosed in the Borrower’s SEC Documents filed with, or furnished to, the SEC since April 14, 2016 and publicly available on the SEC’s XXXXX website not less than two (2) Business Days prior to the date by the Secretary of State of the Acquisition Agreement (excluding any disclosures contained in the “Risk Factors” section thereof, any disclosure contained in any “forward-looking statements” disclaimer or any other disclosure of risks or any other statements that are predictive or forward-looking in nature in each case other than any specific factual information contained therein, which shall not be excluded), since December 31, 2015, there shall not have been any event, change, effect, development, state of formation of each such Loan Party and certificates of qualification to transact business facts, condition, circumstance or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxationoccurrence that, as applicable) of each state individually or in which such Loan Party is required to be so qualified and where failure to be so qualified could the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect;Effect (as defined in the Acquisition Agreement) that is continuing.
(viie) a certificate [Reserved].
(f) The Acquisition shall be consummated substantially concurrently with the funding of incumbency signed the Committed Loans on the Closing Date in all material respects in accordance with the Acquisition Agreement without giving effect to any amendments, modifications, supplements or waivers by the Secretary Borrower thereto or Assistant Secretary consents by the Borrower thereunder that are materially adverse to the Lenders or the Arranger without the Administrative Agent’s and the Arranger’s prior written consent (such consent not to be unreasonably conditioned, withheld or delayed), it being understood that (i) any decrease in the consideration for the Acquisition that, together with all other individual performing similar functions) of each Loan Party with respect to each such decreases since the date of the officers Commitment Letter, does not exceed 15% of the aggregate consideration for the Transactions (measured as of September 25. 2016) will not be deemed materially adverse, so long as such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party decrease is a party, in the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of allocated (A) first, to a dollar-for-dollar reduction in commitments in respect of the by-laws of such Loan Party, if a corporation, Bridge Facility Commitments (to the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity extent outstanding) and (B) all corporatesecond, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance a dollar-for-dollar reduction of the Loan Documents Aggregate Commitments, (ii) any increase in the consideration for the Acquisition will not be deemed materially adverse, so long as such increase is funded with the proceeds or issuance of equity or with cash on hand (and not funded with new indebtedness in excess of $50 million incurred outside of the ordinary course) and (iii) any waiver or modification of Sections 7.4, 8.6, 8.7, 8.8, 8.10 and 8.13 of the Acquisition Agreement shall be deemed to which it is a party;be materially adverse to the Lenders.
(ixg) [intentionally omitted];
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer The Arranger shall have received for each of the Parent;
Borrower and the Acquired Business (xiii) [intentionally omitted];
(a) U.S. GAAP audited consolidated balance sheets and related statements of income, changes in equity income and cash flows of the Parent flows, for the three most recent fiscal years ended December 31, 20162015, December 31, 2017 2014 and December 31, 2018 2013 and for any subsequent fiscal year ended at least 90 days prior to the Closing Date, (bii) U.S. GAAP unaudited consolidated balance sheets and related statements of income, changes in equity income and cash flows for each of the Parent for each three subsequent fiscal quarter ending after December 31, 2018 and quarters ended at least 45 days prior to before the Closing Date; provided , and (iii) customary pro forma financial statements prepared by the Borrower that shall meet the Parentrequirements of Regulation S-X under the Securities Act of 1933, as amended (the “Act”) to the extent applicable in a registration statement of the Borrower’s public debt securities under such Act on Form S-4. The Arranger acknowledges receipt of (A) the audited financial statements referred to in clause (a) above for the three most recent fiscal years ended December 31, 2015, December 31, 2014 and December 31, 2013 and (B) the unaudited financial statements referred to in clause (b) above for the two most recent fiscal quarters ended March 31, 2016 and June 30, 2016. The Borrower’s or Acquired Business’s, as the case may be, filing of any required audited financial statements with respect to the SEC shall constitute delivery of such Borrower or Acquired Business, as the case may be, on Form 10-K or required unaudited financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) with respect to the extent invoiced at least one (1) Business Day prior to Borrower or Acquired Business, as the Closing Datecase may be, evidence that all accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable to the Administrative Agent, the Lead Arranger and the Lenders on the Closing Date shall have been paid; and
(xv) all necessary information in connection with the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirementsForm 10-Q, in each case to be delivered by case, will satisfy the Loan Parties not later than five requirements under clauses (5g)(i) or (g)(ii), as applicable, of this subsection (g).
(h) The Administrative Agent shall have received, at least three (3) Business Days prior to the Closing Date to Date, all documentation and other information about the extent such information is Borrower and the Acquired Business required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Act, reasonably requested not later than in writing by the Administrative Agent (on behalf of any Lender) at least ten (10) Business Days prior to the Closing Date; and.
(b) (i) there shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration Any fees required to be paid under on or before the Merger Agreement Closing Date shall have been paid.
(j) Unless waived by the “Cash Merger Consideration”)Administrative Agent, the Borrower shall have paid all reasonable and documented Attorney Costs (directly to such counsel if funded with equity requested by the Administrative Agent) of the Administrative Agent to the extent invoiced at least two Business Days prior to the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of such Attorney Costs incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts among the Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.02, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be materially adverse 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 interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions to Closing Date. The effectiveness of this Agreement is subject to the satisfaction or waiver of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent shall have received and each of the followingLenders:
(i) executed counterparts of this Agreement executed by Agreement, sufficient in number for distribution to the Administrative Agent, each of Lender and the parties heretoBorrower;
(ii) if requested by any Lender pursuant to Section 2.12.(a) at least three (3) days prior to the date hereof, a Note executed by the Borrowers, payable to such Borrower in favor of each Lender and complying with the terms of Section 2.12.(a)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 the identity, authority and capacity of each Responsible Officer thereof authorized to act as a fully executed copy of Responsible Officer in connection with this Agreement and the Merger Agreementother Loan Documents to which such Loan Party is a party;
(iv) an copies of the Organization Documents of each Loan Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Borrower to be true and correct as of the Closing Date and such other documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Loan Parties is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(v) a favorable opinion of Hogan Lovells Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP, counsel to the Company and the other Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Lenders Loan Parties and in form and substance reasonably satisfactory to the Loan Documents as the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan PartyAgent may request;
(vi) a certificate of good standing (or certificate a Responsible Officer of similar meaning) with respect to each Loan Party issued as either (A) attaching copies of a recent date all consents, licenses and approvals required in connection with the execution, delivery and performance by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a), (b), and (c) 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; and (C) a calculation of the Consolidated Leverage Ratio as of the last day of the fiscal quarter of the Borrower ended on June 30, 2018;
(viii) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower ended on June 30, 2018, signed by a Responsible Officer of the Borrower;
(ix) evidence that all insurance required to be so qualified maintained pursuant to the Loan Documents has been obtained and where failure is in effect;
(x) a certificate executed by a Responsible Officer of the Borrower as of the Closing Date, in form and substance satisfactory to the Administrative Agent, regarding the Solvency of (A) the Borrower, (B) each of the other Loan Parties, and (C) the Consolidated Parties on a consolidated basis; and
(xi) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(b) Any fees required to be so qualified paid hereunder on or before the Closing Date shall have been paid (provided such fees may be paid from the proceeds of any Loan on the Closing Date).
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The representations and warranties of the Borrower and each other Loan Party contained in Section 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 on and as of the Closing Date.
(e) No Default shall exist, or would result from, any Borrowing on the Closing Date or from the application of the proceeds thereof.
(f) There shall not have occurred any 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.
(g) The absence of any condition, circumstance, action, suit, investigation or proceeding pending or, to the knowledge of the Borrower and/or Guarantors, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect;.
(viih) a certificate of incumbency signed by Upon the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, in the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case reasonable request of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) [intentionally omitted];
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and Lender made at least 45 ten (10) days prior to the Closing Date; Date (or such shorter period as Lenders may agree), the Borrower shall have provided that to such Lender, and such Lender shall be reasonably satisfied with, the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) to the extent invoiced at least one (1) Business Day prior to the Closing Date, evidence that all accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) documentation and other compensation due and payable to the Administrative Agent, the Lead Arranger and the Lenders on the Closing Date shall have been paid; and
(xv) all necessary information so requested in connection with the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), applicable “know your customer” requirementsand anti-money-laundering rules and regulations, and other customary requirementsincluding, without limitation, the Act, in each case to be delivered by the Loan Parties not later than five at least (5) Business Days days prior to the Closing Date to the extent (or such information is requested not later than ten shorter period as Lenders may agree).
(10i) Business Days At least five (5) days prior to the Closing Date; and
Date (b) (i) there shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the such shorter period as Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”may agree), if funded the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall deliver a Beneficial Ownership Certification in relation to the Borrower. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with equity the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall not be deemed to have consented to, approved or accepted or to be materially adverse 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 interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions to Closing Date. The effectiveness occurrence of this Agreement the Closing Date is subject to the satisfaction (or waiver waiver) of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The Administrative Agent shall have received each Agent’s receipt of the following:, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (to the extent applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of this Agreement executed by from the Borrower, each of Closing Date Guarantor, each Lender and the parties heretoAdministrative Agent;
(ii) if requested Notes executed by any the Borrower in favor of each Lender pursuant to Section 2.12.(a) requesting Notes at least three (3) days Business Days prior to the date hereof, a Note executed by the Borrowers, payable to such Lender and complying with the terms of Section 2.12.(a)Closing Date;
(iii) a fully executed copy certificate of each Loan Party, substantially in the Merger Agreement;
(iv) an opinion of Hogan Lovells LLP, counsel to the Company and the other Loan Parties, addressed form delivered to the Administrative Agent and as a condition to the Lenders and effectiveness of the November 2019 Credit Agreement (or in such other form and substance reasonably satisfactory to the Administrative Agent), executed by any Responsible Officer of such Loan Party, including or attaching the documents referred to in subclause (iv) below;
(viv) the certificate or articles a copy of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if anyA) each Organization Document of each Loan Party certified certified, to the extent applicable, as of a recent date reasonably acceptable to the Administrative Agent by the Secretary of State applicable Governmental Authority, (B) signature and incumbency certificates of the state of formation of such Loan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) Responsible Officers of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver executing the Loan Documents to which such Loan Party it is a party, in (C) resolutions of the case Board of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing Directors and/or similar functions) governing bodies of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity approving and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize authorizing the execution, delivery and performance of the Loan Documents to which it is a party;, certified by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (D) a good standing certificate (to the extent such concept exists) from the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation; and
(ixv) [intentionally omitted];a customary written opinion (addressed to the Administrative Agent and the Lenders) of (i) Wachtell, Lipton, Xxxxx & Xxxx, special counsel for the Loan Parties and (ii) Xxxxxx LLP (or such other counsel as is reasonably acceptable to the Administrative Agent), California counsel for the Loan Parties. The Borrower hereby requests such counsels to deliver such opinions.
(xb) [intentionally omitted];The Administrative Agent shall have received, to the extent invoiced at least three Business Days prior to the Closing Date (except as otherwise reasonably agreed by the Borrower), reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel for the Administrative Agent) required to be reimbursed or paid by any Loan Party under any Loan Document.
(xic) The Administrative Agent and the Arrangers shall have received all documentation at least three Business Days prior to the Closing Date and other information about the Loan Parties that shall have been reasonably requested by the Administrative Agent or an Arranger in writing at least 10 Business Days prior to the Closing Date and that the Administrative Agent or such Arranger reasonably determines is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act.
(d) The January 2021 Refinancing shall have been consummated, or substantially simultaneously with the Closing Date shall be consummated.
(e) The Administrative Agent shall have received a Solvency Certificate certificate from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited Borrower in the form attached as Exhibit B hereto certifying that the Borrower and the Subsidiaries on a consolidated balance sheets and related statements of income, changes in equity and cash flows basis after giving effect to the January 2021 Transactions are Solvent. The occurrence of the Parent for Closing Date shall be confirmed by a written notice from the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and at least 45 days prior Administrative Agent to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) to the extent invoiced at least one (1) Business Day prior to the Closing Date, evidence that all accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable to the Administrative Agent, the Lead Arranger Borrower and the Lenders on the Closing Date Date, and shall be conclusive evidence of the occurrence thereof. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have been paid; and
(xv) all necessary information in connection with the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each case to be delivered by the Loan Parties not later than five (5) Business Days received notice from such Lender prior to the proposed Closing Date to the extent such information is requested not later than ten (10) Business Days prior to the Closing Date; and
(b) (i) there shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of specifying its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Broadcom Inc.)
Conditions to Closing Date. The effectiveness of this Agreement is subject to the satisfaction (or waiver pursuant to Section 10.01) of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The the Administrative Agent’s receipt of the following, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent shall have received and each of the followingLenders:
(i) executed counterparts of (x) this Agreement Agreement, executed and delivered by the Administrative Agent, the Borrower and each Person listed on Schedule 2.01, (y) the Subsidiary Guaranty, executed and delivered by the Administrative Agent and each Subsidiary Guarantor and (z) the Acquisition Agreement, each properly executed by each a Responsible Officer of the parties heretorelevant Loan Party;
(ii) if requested by any Lender pursuant 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 the identity, authority and capacity of each Responsible Officer thereof authorized to Section 2.12.(a) at least three (3) days prior act as a Responsible Officer thereof in connection with this Agreement and the other Loan Documents to the date hereof, which such Loan Party is a Note executed by the Borrowers, payable to such Lender and complying with the terms of Section 2.12.(a)party;
(iii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that such Loan Party is validly existing, in good standing and qualified to engage in business in the jurisdiction of its organization, each, where applicable, properly executed by a fully executed copy Responsible Officer of the Merger Agreementrelevant Loan Party;
(iv) an a favorable opinion of Hogan Lovells Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, counsel to the Company Borrower and the other Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Lenders Loan Parties and in form and substance reasonably satisfactory to the Loan Documents as the Administrative AgentAgent or the Required Lenders may reasonably request;
(v) a Note properly executed by a Responsible Officer of the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) Borrower in favor of each Loan Party certified as of Lender requesting a recent date by the Secretary of State of the state of formation of such Loan PartyNote;
(vi) all information requested by any Lender necessary to enable such Lender to identify the Borrower to the extent required for compliance with the Act or other “know your customer” and anti-money laundering rules and regulations, including the Act;
(b) each of the representations and warranties of the Loan Parties contained in Article V 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 (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the Closing Date as if made on and as of such date, 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 (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such earlier date;
(c) No Default or Event of Default shall exist on the Closing Date;
(d) the Administrative Agent shall have received a certificate properly executed by a Responsible Officer of good standing (or certificate of similar meaning) with respect the Borrower satisfactory to each Loan Party issued it demonstrating compliance by the Borrower as of the Closing Date with the financial covenant included in Section 7.06;
(e) the Administrative Agent shall have received a recent date certificate signed by a Responsible Officer of the Borrower confirming, as of the Closing Date, the satisfaction (unless waived by the Secretary of State Required Lenders) of the state of formation of each such Loan Party conditions specified in this Section 4.01;
(f) the Lenders, the Administrative Agent and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is the Arrangers shall have received all fees required to be so qualified paid, and where failure to be so qualified could reasonably be expected to all expenses for which invoices have a Material Adverse Effect;
been presented (vii) a certificate of incumbency signed by including the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute reasonable fees and deliver the Loan Documents to which such Loan Party is a party, in the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form expenses of legal entity and (B) all corporatecounsel), partnership, member on or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) [intentionally omitted];
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and at least 45 days prior to before the Closing Date; provided that , including fees and expenses and other compensation contemplated by the Parent’s public filing Fee Letter. Without duplication of any required financial statements with the SEC foregoing, unless waived by the Administrative Agent, the Borrower shall constitute delivery have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xivcounsel if requested by the Administrative Agent) to the extent invoiced at least one (1) Business Day prior to or on the Closing Date. Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the Closing Date, evidence that all accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable to the Administrative Agent, the Lead Arranger and the Lenders on the proposed Closing Date shall have been paid; and
(xv) all necessary information in connection with the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each case to be delivered by the Loan Parties not later than five (5) Business Days prior to the Closing Date to the extent such information is requested not later than ten (10) Business Days prior to the Closing Date; and
(b) (i) there shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of specifying its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);objection thereto.
Appears in 1 contract
Samples: Revolving Credit Agreement (Thermo Fisher Scientific Inc.)
Conditions to Closing Date. The effectiveness obligations of this Agreement is the Lenders to make Loans and any L/C Issuer to issue Letters of Credit or increase the stated amounts of Letters of Credit hereunder on the terms provided herein are subject to the satisfaction or waiver (in accordance with Section 10.01 hereof) of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The Administrative Agent shall have received each Agent’s receipt of the following, each of which shall be originals or facsimiles (followed promptly by delivery of originals to the Administrative Agent) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower and each other applicable Loan Party and dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement executed by each of the parties party hereto;
(ii) if requested by any Lender pursuant 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 the identity, authority and capacity of each Responsible Officer thereof authorized to Section 2.12.(a) at least three (3) days prior act as a Responsible Officer in connection with this Agreement and the other Loan Documents to the date hereof, which such Loan Party is a Note executed by the Borrowers, payable party or is to such Lender and complying with the terms of Section 2.12.(a)be a party;
(iii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party (A) is duly organized or formed, including a fully executed certified true and correct copy of the Merger Agreementcharter of such Loan Party, and each amendment thereto, as in effect on the Closing Date, and (B) is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(iv) an opinion executed counterparts of Hogan Lovells LLP, counsel the Guaranty by each party hereto;
(v) a Note duly executed by the Borrower in favor of each Lender requesting a Note at least three Business Days prior to the Company Closing Date;
(vi) a security agreement, in substantially the form of Exhibit G hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 6.12, the “Security Agreement”), duly executed by each Loan Party, together with:
(A) certificates and instruments representing the Pledged Equity and Pledged Debt referred to therein accompanied by undated stock powers or instruments of transfer executed in blank,
(B) proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement,
(C) a Perfection Certificate, in substantially the form of Exhibit N, duly executed by each of the Loan Parties,
(D) copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that are required by the Perfection Certificate or that the Administrative Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens) and
(E) evidence of insurance required by terms of any Loan Document, including, but not limited to, certificates of insurance, in form and detail reasonably acceptable to the Administrative Agent, describing the types and amounts of insurance (property and liability) maintained by any of the Loan Parties, addressed to in each case naming the Administrative Agent as lender loss payee or additional insured, as the case may be, together with endorsements naming Administrative Agent as lender loss payee and the Lenders and additional insured, as applicable, in each case in form and substance reasonably satisfactory to the Administrative Agent;
(v) the certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a partyIntellectual Property Security Agreements, in form and substance reasonably satisfactory to the case of each BorrowerAdministrative Agent, authorized covering the items set forth on Schedule IV to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuationthe Security Agreement;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) a favorable opinion of each Loan Party of (A) the by-laws of such Loan PartyCravath, if a corporationSwaine & Xxxxx LLP, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party special New York counsel to authorize the execution, delivery and performance of the Loan Documents Parties, addressed to which it is a partythe Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(ix) [intentionally omittedreserved];
(x) [intentionally omitted]the Audited Financial Statements, the unaudited consolidated financial statements of the Borrower and its Subsidiaries as of the end of the fiscal quarter ended June 30, 2021 and financial projections for each fiscal year from the fiscal year ending December 31, 2021 through the fiscal year ending December 31, 2025 reasonably satisfactory to the Lead Arranger;
(xi) a certificate attesting to the Solvency Certificate of the Borrower and its Subsidiaries, on a consolidated basis, immediately before and immediately after giving effect to the Transactions, from the chief financial officer Chief Financial Officer of the ParentBorrower, in substantially the form of Exhibit I hereto;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows a certificate signed by a Responsible Officer of the Parent for Borrower certifying that the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 conditions specified in Sections 4.02(a) and (b) GAAP unaudited consolidated balance sheets have been satisfied;
(xiii) a duly executed funds disbursement agreement, together with a report setting forth the sources and related statements of income, changes in equity and cash flows uses of the Parent for each subsequent fiscal quarter ending after December 31proceeds hereof;
(xiv) copies of duly executed payoff letters, 2018 in form and substance reasonably satisfactory to the Administrative Agent, executed by the administrative agent under the Existing Credit Agreement, together with (a) UCC-3 or other appropriate termination statements, in form and substance reasonably satisfactory to the Administrative Agent, releasing all liens upon any of the personal property of the Borrower and its Subsidiaries in respect of the Existing Credit Agreement and any other Indebtedness not permitted hereunder and (b) any other releases, terminations or other documents reasonably required by the Administrative Agent;
(b) Each of the Loan Parties shall have provided the documentation and other information to the Administrative Agent that is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering laws, rules and regulations, including the Act, with respect to the Borrower and the Guarantors, to the extent requested at least 45 seven days prior to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);.
(xivc) to the extent invoiced at least one (1) Business Day The Borrower shall have paid, on or prior to the Closing Date, evidence that (i) all accrued costs, fees and expenses (including legal fees and expenses and the reasonable fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable counsel to the Administrative Agent, the Lead Arranger and the Lenders ) required to be paid on the Closing Date pursuant to Section 2.09(b) hereof and (ii) all other fees and expenses required to be paid pursuant to Section 10.04(a) for which invoices shall have been paid; and
(xv) all necessary information in connection with presented to the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each case to be delivered by the Loan Parties not later than five (5) Business Days Borrower at least three days prior to the Closing Date (or such shorter time as the Borrower may agree). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the extent Administrative Agent shall have received notice from such information is requested not later than ten (10) Business Days Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall promptly notify the Borrower and the Lenders of the Closing Date; and
(b) (i) there , and such notice shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood conclusive and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);binding.
Appears in 1 contract
Samples: Credit Agreement (AdvanSix Inc.)
Conditions to Closing Date. The effectiveness of this Agreement is subject to the satisfaction or waiver Lenders’ Commitments shall not become effective hereunder unless all of the following conditions precedent have been satisfied (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurredwaived in accordance with Section 10.01):
(a) The Unless waived by all the Lenders (or by the Administrative Agent shall have received each Agent), the Administrative Agent’s receipt of the following, unless otherwise specified, each properly executed by a Responsible Officer of the Company (where applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement executed by Agreement, signed on behalf of each party hereto or written evidence (which may include electronic transmission of the parties heretoa signed signature page of this Agreement) that each party hereto has signed a counterpart of this Agreement;
(ii) if requested executed counterparts of the Guarantee, signed by any Lender pursuant to Section 2.12.(aExelis or written evidence (which may include electronic transmission of a signed signature page of this Agreement) at least three (3) days prior to that Exelis has signed the date hereof, a Note executed by the Borrowers, payable to such Lender and complying with the terms of Section 2.12.(a)Guarantee;
(iii) a fully executed copy certified copies of resolutions or other action of the Merger AgreementBoard of Directors of each Borrower and Guarantor, incumbency certificates and/or other certificates of the Secretary or Assistant Secretary of each Borrower and Guarantor establishing the identities of and verifying the 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 Borrower or Guarantor is a party;
(iv) an opinion evidence verifying that each Borrower and Guarantor is duly organized or formed, validly existing, in good standing and qualified to engage in business in the jurisdiction of Hogan Lovells LLP, counsel to the Company and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agentits incorporation;
(v) the a certificate or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) signed by a Responsible Officer of each Loan Party certified as of a recent 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 the date by the Secretary of State of the state of formation of such Loan Party;
(vi) a certificate of good standing (Audited Financial Statements which has had or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect; and (C) the current Senior Debt Ratings;
(vi) an opinion of counsel to the Borrowers, addressed to the Administrative Agent, SunTrust Bank as L/C Issuer and each of the Lenders, and covering such matters relating to the Borrowers, the Loan Documents and the transactions contemplated therein as the Administrative Agent shall reasonably request;
(vii) a certificate evidence that (A) the Company has delivered notice of incumbency signed by its termination of commitments under the Secretary or Assistant Secretary Existing Credit Agreement to the administrative agent three Business Days prior to the Closing Date, (or other individual performing similar functionsB) of each Loan Party that all amounts outstanding under the Existing Credit Agreement have been paid (including, without limitation, principal, interest and fees), provided that all such amounts may be repaid substantially simultaneously with respect to each Loan(s) advanced under this Agreement, and (C) that the “commitments” of the officers of such Loan Party authorized to execute and deliver lenders under the Loan Documents to which such Loan Party is a party, in Existing Credit Agreement have been or concurrently with the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of ContinuationClosing Date are being terminated;
(viii) copies certified by a duly executed Request for Credit Extension for any Credit Extension to be made on the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a partyClosing Date;
(ix) [intentionally omitted];a duly executed funds disbursement agreement, if applicable; and
(x) [intentionally omitted];such other certificates, documents or consents as the Administrative Agent or SunTrust Bank as L/C Issuer reasonably require.
(xi) a Solvency Certificate from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of incomeAny fees required to be paid on or before the Closing Date in connection herewith shall have been paid.
(c) Unless waived by the Administrative Agent, changes in equity and cash flows the Borrowers shall have paid all Attorney Costs of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and at least 45 days prior to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) Administrative Agent to the extent invoiced at least one (1) Business Day prior to the Closing Date, evidence that all accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses plus such additional amounts of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable to Attorney Costs as shall constitute the Administrative Agent, ’s reasonable estimates of Attorney Costs incurred or to be incurred by each of them through the Lead Arranger closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Lenders on Administrative Agent). Without limiting the Closing Date generality of the provisions of Section 4.01, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have been paid; and
(xv) all necessary information in connection with the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each case to be delivered by the Loan Parties not later than five (5) Business Days received notice from such Lender prior to the proposed Closing Date to the extent such information is requested not later than ten (10) Business Days prior to the Closing Date; and
(b) (i) there shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of specifying its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);objection thereto.
Appears in 1 contract
Conditions to Closing Date. The effectiveness of this Agreement is subject to the satisfaction or waiver obligations of the following conditions precedent (and upon the satisfaction or waiver of such conditions, Lenders to make Loans hereunder on the Closing Date shall be deemed subject to have occurred):the satisfaction (or waiver in accordance with Section 9.02) of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from each party hereto a counterpart of this Agreement signed on behalf of such party, in each case, which, subject to Section 9.06(b), may include any Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page.
(b) Substantially concurrently with the satisfaction of the followingother conditions precedent set forth in this Section 4.01, the Parent Borrower and its Subsidiaries party thereto shall have entered into the ABL Facility and the Administrative Agent shall have received a counterpart of the ABL Intercreditor Agreement, signed by the ABL Agent and acknowledged by the Loan Parties party thereto.
(c) Subject to Section 5.19 (it being understood that any document required to be delivered pursuant to Section 5.19 shall not constitute a condition precedent under this Section 4.01), the Administrative Agent’s receipt of the following documents each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) Subject to clause (iv) below, executed counterparts of this Agreement each other Loan Document from each party thereto signed on behalf of such party, in each case, which, subject to Section 9.06(b), may include any Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed by each of the parties heretosignature page;
(ii) if requested a Note duly executed by any the Borrowers in favor of each Lender pursuant to Section 2.12.(a) requesting a Note at least three (3) days 3 Business Days prior to the date hereofClosing Date;
(iii) [reserved];
(iv) executed counterparts of the Security Agreement signed on behalf of each Loan Party, in each case, which, subject to Section 9.06(b), may include any Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page, together with, to the extent not already delivered to the Administrative Agent (and subject to the ABL Intercreditor Agreement):
(A) To the extent required under the Loan Documents and not previously delivered to the ABL Agent in connection with the ABL Credit Agreement, subject to the final paragraph of this Section 4.01, certificates and instruments representing the Pledged Equity and Pledged Debt referred to therein accompanied by undated stock powers or instruments of transfer executed in blank (it being understood that, with respect to any Pledged Equity or Pledged Debt previously delivered to the ABL Agent, this subclause (A) shall be satisfied by such delivery of such Pledged Equity or Pledged Debt to the ABL Agent to the extent held by the ABL Agent in accordance with the ABL Intercreditor Agreement);
(B) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent may DB1/ 131320059.16 deem reasonably necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement;
(C) a Note Perfection Certificate, duly executed by a Responsible Officer of the BorrowersParent Borrower;
(D) copies of Uniform Commercial Code, payable tax and judgment lien searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business (or as otherwise agreed by the Administrative Agent and the Parent Borrower), none of which encumber the Collateral covered or intended to such Lender be covered by the Collateral Documents (other than Permitted Liens); and
(E) IP Security Agreements, in form and complying substance reasonably satisfactory to the Administrative Agent, covering the items set forth on Schedule IV to the Security Agreement; and
(i) customary certificates of resolutions or other action, customary incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the terms Loan Documents to which such Loan Party is a party or is to be a party;
(ii) customary documents and certifications evidencing that each Loan Party (A) is duly organized or formed, including certified true and correct copies of Section 2.12.(a)the charter of each Loan Party, and each amendment thereto, as in effect on the Closing Date, and (B) is validly existing, in good standing and qualified to engage in business in the jurisdiction of its organization, in form and substance reasonably acceptable to the Administrative Agent;
(iii) a fully executed copy of the Merger Agreement;
(iv) an favorable opinion of Hogan Lovells Cravath, Swaine & Xxxxx LLP, special counsel to the Company and the other Loan Parties, addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Lenders Administrative Agent;
(iv) a favorable opinion of (i) Faegre Drinker Xxxxxx & Xxxxx LLP, special Minnesota counsel to the Loan Parties, (ii) Xxxxxxx GPM LLP, special Missouri counsel to the Loan Parties, (iii) Xxxxxxxx Xxxxx Dushoff LLC, special Nevada counsel to the Loan Parties, (iv) Xxxxxx & Whitney LLP, special California, Montana, Texas and Utah counsel to the Loan Parties and (v) Xxxxxxx, Xxxxxxxxxx & Xxxxx, P.C., special Oregon counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(v) a certificate substantially in the certificate or articles form of incorporation or formation, articles Exhibit F from the Chief Financial Officer of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified the Parent Borrower dated as of a recent date by the Secretary of State of Closing Date and certifying as to the state of formation of such Loan Partymatters set forth therein;
(vi) a certificate signed by a Responsible Officer of good standing the Parent Borrower certifying that the conditions specified in Sections 4.01(e), (or certificate of similar meaningh), (i) and (j) have been satisfied; and
(vii) subject to Section 5.19, the Administrative Agent shall have received, with respect to each Loan Party issued as parcel of Eligible Real Property which is required to be subject to a recent date Lien in favor of the Administrative Agent, each of the following, in form and substance reasonably satisfactory to the Administrative Agent: DB1/ 131320059.16
(F) a Mortgage on such property;
(G) evidence that a counterpart of the Mortgage has been recorded in the place necessary, in the Administrative Agent’s judgment, to create a valid and enforceable first priority Lien (subject to Permitted Liens having priority by operation of Law) in favor of the Administrative Agent for the benefit of itself, the Lenders and the other Secured Parties;
(H) ALTA or other mortgagee’s title policy;
(I) an ALTA survey prepared and certified to the Administrative Agent by a surveyor acceptable to the Administrative Agent;
(J) if required by the Secretary Administrative Agent, an opinion of State of counsel in the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party parcel of Eligible Real Property is required located in form and substance and from counsel reasonably satisfactory to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effectthe Administrative Agent;
(viiK) if any such parcel of Eligible Real Property is determined by the Administrative Agent to be in a certificate of incumbency “Special Flood Hazard Area” as designated on maps prepared by the Federal Emergency Management Agency, a flood notification form signed by the Secretary Parent Borrower and evidence that flood insurance is in place for the building and contents, all in form, substance and amount satisfactory to the Administrative Agent and the Lenders;
(L) Initial Appraisals of the Eligible Real Property; and
(M) an environmental assessment of the Eligible Real Property prepared by an environmental engineer reasonably acceptable to the Administrative Agent, and accompanied by such reports, certificates, studies or Assistant Secretary data as the Administrative Agent may reasonably require, all in form and substance reasonably satisfactory to the Administrative Agent.
(a) The Administrative Agent shall have received (i) a pro forma consolidated balance sheet and related pro forma consolidated statements of income and cash flow of the Parent Borrower as of, and for the twelve month period ending on, the last day of the most recently completed four fiscal quarter period ended at least 60 days prior to the Closing Date (or other individual performing similar functions) of each Loan Party with respect 120 days prior to each the Closing Date in case such four fiscal quarter period is the end of the officers Parent Borrower’s fiscal year), prepared after giving effect to the Transactions as if the Transactions had occurred as of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, date (in the case of each Borrower, authorized to execute and deliver on behalf such balance sheet) or at the beginning of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;
period (viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form such statements of legal entity income and cash flow), (Bii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) [intentionally omitted];
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity income and cash flows flow of each of the Parent for Borrower, the fiscal years ended Target and their respective Subsidiaries, in each case as of December 31, 20162019, December 31, 2017 2020 and December 31, 2018 2021, with respect to the Target and its Subsidiaries and March 31, 2020, March 31, 2021 and March 31, 2022, with respect to the Parent Borrower and its Subsidiaries (the “Audited Financial Statements”), and (biii) GAAP the unaudited consolidated balance sheets and related statements sheet of income, changes in equity and cash flows each of the Parent for Borrower, the Target and their respective Subsidiaries, in each case as of the end of any subsequent fiscal quarter ending after December 31, 2018 and ended at least 45 days prior to the Closing Date (with respect to the Target, solely to the extent the same has been provided by the Target to the Parent Borrower) (such financial statements described in this clause (iii), the “Unaudited Financial Statements”).
(b) (i) The Specified Acquisition Agreement Representations shall be true and correct to the extent required by the terms of the definition thereof and (ii) the Specified Representations shall be true and correct in all material respects on and as of the Closing Date; provided that (A) in the Parent’s public filing case of any required financial statements with the SEC Specified Representation which specifically refers to an earlier date, in which case they shall constitute delivery be true and correct in all material respects as of such financial statements earlier date, and (B) if any Specified Representation is qualified by “materiality” or “Material Adverse Effect” or similar terms, (1) for the avoidance of doubt, the definition thereof shall be the DB1/ 131320059.16 definition of “Closing Date Material Adverse Effect” for purposes of this Section 6.1.(I)(a)(xiii);the making or deemed making of such Specified Representation on, or as of, the Closing Date (or any date prior thereto) and (2) such Specified Representation shall be true and correct (after giving effect to any qualification therein) in all respects as of the respective date or for the respective period, as the case may be.
(xivc) The Borrowers shall have paid, on or prior to the extent invoiced Closing Date, (i) all fees and expenses required to be paid on the Closing Date pursuant to Section 2.12 hereof and (ii) all other fees and expenses (including the reasonable and documented fees, charges and disbursements of Xxxxxx, Xxxxx & Xxxxxxx LLP) required to be paid pursuant to Section 9.03(a) for which invoices shall have been presented to the Parent Borrower at least one (1) 2 Business Day prior to the Closing Date, evidence that all accrued costs, fees and expenses .
(including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letterd) and other compensation due and payable The Borrowers shall have provided to the Administrative Agent, the Lead Arranger and the Lenders on the Closing Date shall have been paid; and
(xv) all necessary information in connection with the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each case to be delivered by the Loan Parties not later than five (5) Agent at least 3 Business Days prior to the Closing Date (i) the documentation and other information that is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act, with respect to the Loan Parties to the extent such information is reasonably requested not later than ten (10) by the Administrative Agent or any Lender at least 10 Business Days prior to the Closing Date; and, and (ii) to the extent applicable, a Beneficial Ownership Certification with respect to any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation to the extent requested by the Administrative Agent or any Lender, in each case, the results of which are reasonably satisfactory to the Administrative Agent and any such Lender.
(be) (i) there The Fox Acquisition shall not have occurred on or after be consummated or, substantially concurrently with the Commitment Effective Date initial funding of the Loans hereunder, in all material respects in accordance with the terms of the Fox Acquisition Agreement, but without giving effect to any amendments, modifications or waivers by PK Domestic LLC or any of its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and or the Lead Arranger and shall not require Arrangers in their respective capacities as such without the prior consent of the Lead Arranger Arrangers. After giving effect to the Fox Acquisition, the Target and its subsidiaries shall each be direct or indirect subsidiaries of the Parent Borrower.
(f) Since the date of the Fox Acquisition Agreement, there shall have been no Closing Date Material Adverse Effect.
(g) After giving effect to the Transactions to be consummated on the Closing Date and the “Initial Credit Extension” (under and as defined in the ABL Credit Agreement), ABL Excess Availability shall be not less than $100,000,000. For purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. The Administrative Agent shall promptly notify the Parent Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding Notwithstanding the foregoing, to the extent funded that the Lien on any Collateral is not or cannot be created or perfected on the Closing Date after the Parent Borrower’s use of commercially reasonable efforts to do so (other than (a) solely with respect to creation, any Lien on the Collateral that may be created by equity only execution and delivery of the Security Agreement by each Loan Party and (b) solely with respect to perfection, (i) any Lien on Collateral that is of the type that may be perfected by the filing of a financing statement under the UCC or customary “short form” intellectual property filings with the United States Patent and Trademark Office or the United States Copyright Office and (ii) any decrease Lien on the Equity Interests of the Subsidiaries of the Parent Borrower that may be perfected on the Closing Date by the delivery to the Administrative Agent or the ABL Agent of a stock or equivalent certificate (other than any such certificates in the Cash Merger Consideration shall not be deemed to be materially adverse possession of the ABL Agent or any of its Affiliates); provided that, to the interests DB1/ 131320059.16 extent any such stock or equivalent certificate of the Lenders Target and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first its Subsidiaries has not been made available to the Lenders’ Tranche A-1 Commitments and second Parent Borrower prior to the Lenders’ Tranche A-2 Commitments, in each case, ratably Closing Date in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment the terms of the Fox Acquisition Agreement, such stock or modification equivalent certificate shall not constitute a condition precedent to the definition availability or initial funding of “Company Material Adverse Effect” (as such term is defined the Loans on the Closing Date, but may instead be delivered or perfected within the time period set forth in the Merger AgreementSection 5.19), (ii) consent or waiver given by then the Company or any affiliate thereof as to any matter that would but for creation and/or perfection of such consent Lien shall not constitute a “Company Material Adverse Effect”, condition precedent to the availability or (iii) action or omission taken at the request initial funding of the Company Loans on the Closing Date, but may instead be delivered or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall perfected within the time period set forth in each case be deemed to be materially adverse to the Lenders);Section 5.19.
Appears in 1 contract
Conditions to Closing Date. The effectiveness of this Agreement is Each Lender’s respective Commitments hereunder shall become effective, on the terms and subject to the satisfaction or waiver of the following other conditions precedent (and set forth herein, upon the satisfaction or waiver (in accordance with Section 10.01) of such conditions, the Closing Date shall be deemed to have occurred):following conditions precedent:
(a) The Administrative Agent shall have received each all of the following, each properly executed by a Responsible Officer of each signing Loan Party and each dated as of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Date), each in form and substance reasonably satisfactory to the Administrative Agent, and each accompanied by their respective required schedules and other attachments:
(i) executed counterparts of (A) this Agreement executed by from each of party hereto and (B) the parties heretoGuaranty from each party thereto;
(ii) the Security Agreement, duly executed by each party thereto, together with:
(A) certificates, if requested any, representing the Equity Interests in the Borrower and all other Pledged Interests referenced in the Security Agreement accompanied by any Lender pursuant undated stock powers executed in blank,
(B) copies of proper financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary in order to Section 2.12.(aperfect and protect the Liens on assets of each of the Loan Parties created under the Security Agreement, covering the Collateral described in the Security Agreement, and
(C) at least three (3) days prior evidence that all other actions, recordings and filings of or with respect to the date hereofSecurity Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a Note manner reasonably satisfactory to the Administrative Agent (including receipt of duly executed by the Borrowerspayoff letters, payable to such Lender customary lien searches and complying with the terms copies of Section 2.12.(aUCC-3 termination statements duly prepared for filing);
(iii) a fully an Intellectual Property Security Agreement (in the form of Exhibit B to the Security Agreement), duly executed copy of by each Loan Party that owns intellectual property that is required to be pledged in accordance with the Merger Security Agreement;
(iv) a certificate for each Loan Party certifying the Organizational Documents, good standing certificates in the jurisdiction of organization (if , applicable), resolutions, and incumbency certificates; and
(v) an opinion of Hogan Lovells Mxxxxxxx & Forester LLP, counsel to the Company and the other Loan Parties, addressed to the Administrative Agent and the Lenders and on the Closing Date, in form and substance reasonably satisfactory to the Administrative Agent;.
(vb) the certificate or articles of incorporation or formationSince March 8, articles of organization2017, certificate of limited partnership or other comparable organizational document no Target Material Adverse Effect shall have occurred.
(if anyc) of each Each Loan Party certified as of a recent date shall have provided the documentation and other information reasonably requested in writing at least five Business Days prior to the Closing Date by the Secretary Lenders in connection with satisfactory compliance clearing, including, without limitation, in respect of State of applicable “know your customer” and anti-money-laundering rules and regulations and the state of formation of such Loan Party;PATRIOT Act, in each case at least three Business Days prior to the Closing Date.
(vid) a certificate of good standing (or certificate of similar meaning) The Administrative Agent shall have received insurance certificates with respect to each Loan Party issued the properties and business of Parent and its Subsidiaries, as of set forth in Section 6.07.
(e) The Administrative Agent shall have received a recent date Note executed by the Secretary Borrower in favor of State each Lender requesting a Note reasonably in advance of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;Closing Date.
(viif) The Administrative Agent shall have received a solvency certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, in the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) [intentionally omitted];
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer or other officer with equivalent duties of the Parent;Borrower (after giving effect to the consummation of the Transactions) substantially in the form attached hereto as Exhibit H.
(xiig) [intentionally omitted];
RBC Capital Markets shall have received (ai) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent Target, in each case, for the three most recently completed fiscal years ended December 31at least one hundred twenty (120) days prior to the Closing Date, 2016, December 31, 2017 and December 31, 2018 and (bii) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent Target, in each case, for each subsequent fiscal quarter ending after December 31, 2018 and ended at least 45 forty-five (45) days prior to the Closing Date; provided that ) and (iii) an unaudited pro forma consolidated balance sheet of the Parent’s public filing Borrower and its Subsidiaries as of any required financial statements with the SEC shall constitute delivery date of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) the most recent consolidated balance sheet delivered pursuant to the extent invoiced at least one preceding subclause (1i) Business Day or (ii), as applicable, and a pro forma statement of operations and Consolidated EBITDA for the twelve-month period ending on such balance sheet date, in each case adjusted to give effect to the Transactions, the other transactions related thereto and such other adjustments as are reflected in the financial model delivered to RBC Capital Markets prior to the Closing Date, evidence that all .
(h) All accrued costs, fees and expenses (including including, without limitation, legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letteradvisors) and other compensation due and payable to the Administrative Agent, the Lead Arranger Arrangers and the Lenders and required by the Commitment Letter or the Fee Letter to be paid on the Closing Date shall have been paid; and
(xv) all necessary information in connection with the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each the case to be delivered by the Loan Parties not later than five (5) Business Days prior to the Closing Date of expenses, to the extent such information is requested not later than ten (10) a reasonably detailed invoice has been delivered to the Borrower at least two Business Days prior to the Closing Date; andprovided that the foregoing amounts may, at the Borrower’s option, be offset against the proceeds of the Facilities funded on the Closing Date.
(b) (i) there After giving effect to the Acquisition, the Closing Date Refinancing and the other Transactions contemplated hereby, Parent, the Borrower and their respective Subsidiaries shall not have occurred on outstanding no indebtedness or after disqualified equity other than the Commitment Effective Date any amendments, modifications or waivers loans and other extensions of credit under the Facilities and other indebtedness permitted by PK Domestic LLC or any of its Affiliates ofthis Agreement and the other Loan Documents.
(j) The Acquisition shall have been consummated, or substantially concurrently with the closing under the Facilities shall be consummated, in all material respects in accordance with the Acquisition Agreement (and no provision of the Acquisition Agreement shall have been waived, amended, supplemented or otherwise modified (including any consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially thereunder) in a manner material and adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead ArrangerAdministrative Agent).
(k) The Acquisition Agreement Representations and the Specified Representations shall be true and correct in all material respects (without duplication of any materiality qualifiers contained therein) and the Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower, such consent not in form and substance reasonably satisfactory to be unreasonably withheldthe Administrative Agent, delayed or conditioned certifying as to compliance with the conditions set forth in this clause (it being understood k) and agreed that in clauses (ab) any and (ij) increase above. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, the aggregate cash consideration to be paid under Administrative Agent and each Lender as of the Merger Agreement (the “Cash Merger Consideration”), if funded with equity Closing Date shall not be deemed to have consented to, approved or accepted or to be materially adverse satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Keyw Holding Corp)
Conditions to Closing Date. The effectiveness occurrence of this Agreement the Closing Date hereunder is subject to the satisfaction or waiver of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent shall have received and each of the followingLenders:
(i) executed counterparts of this Agreement executed by Agreement, the Guaranty, the Security Agreement, the Account Control Agreements relating to the Specified Accounts and the Fee Letter, sufficient in number for distribution to the Administrative Agent, each of Lender and the parties heretoBorrower;
(ii) if requested by any Lender pursuant to Section 2.12.(a) at least three (3) days prior to the date hereof, a Note executed by the Borrowers, payable to such Borrower in favor of each Lender and complying with the terms of Section 2.12.(a)requesting a Note;
(iii) a fully completed and duly executed copy of the Merger Agreementperfection certificates from each Loan Party;
(iv) an opinion completed requests for information, dated on or before the Closing Date, listing all effective financing statements that name any Loan Party as debtor, together with copies of Hogan Lovells LLP, counsel to the Company and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agentsuch financing statements;
(v) the certificate or articles such certificates of incorporation or formation, articles of organization, certificate of limited partnership resolutions or other comparable organizational document (if any) action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a recent date by Responsible Officer in connection with this Agreement and the Secretary of State of the state of formation of other Loan Documents to which such Loan PartyParty is a party or is to be a party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party issued as of a recent date by the Secretary of State is duly organized or formed, and that each of the state Borrower and the other Loan Parties is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of formation properties or the conduct of each its business requires such Loan Party and certificates of qualification qualification, except to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the extent that failure to be do so qualified could not reasonably be expected to have a Material Adverse Effect;
(vii) a certificate favorable opinion of incumbency signed by Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel to the Secretary or Assistant Secretary (or other individual performing similar functions) of Loan Parties, addressed to the Administrative Agent and each Lender, as to matters concerning the Loan Party with respect to each of the officers of such Loan Party authorized to execute Parties and deliver the Loan Documents to which such Loan Party is a party, in as the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of ContinuationRequired Lenders may reasonably request;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) a certificate of a Responsible Officer of each Loan Party of either (A) the by-laws attaching copies of such Loan Partyall consents, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document licenses and approvals required in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ix) [intentionally omitted]a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.03(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(x) [intentionally omitted]a business plan and pro forma forecast of the Borrower and its Subsidiaries on a consolidated basis, including forecasts prepared by the Borrower, of consolidated balance sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on a quarterly basis for the 2010, 2011 and 2012 fiscal years of the Borrower and its Subsidiaries;
(xi) certificate of the Borrower attesting to its Solvency and the Solvency of the Loan Parties taken as a Solvency Certificate whole, in each case, both before and after giving effect to the transactions contemplated by the Loan Documents, from the its chief financial officer of the Parentor controller;
(xii) [intentionally omitted];evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; and
(axiii) GAAP audited consolidated balance sheets and related statements of incomesuch other assurances, changes in equity and cash flows of certificates, documents, consents or opinions as the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and Administrative Agent or any Lender reasonably may require.
(b) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and at least 45 days prior to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) to the extent invoiced at least one (1) Business Day prior to the Closing Date, evidence that all accrued costs, Any fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable to the Administrative Agent, the Lead Arranger and the Lenders paid on or before the Closing Date shall have been paid; and.
(xvc) Unless waived by the Administrative Agent, the Borrower shall have paid all necessary fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Lenders shall have completed a due diligence investigation of the Borrower and its Subsidiaries in scope, and with results, satisfactory to the Lenders, and shall have been given such access to the management, records, books of account, contracts and properties of the Borrower and its Subsidiaries and shall have received such financial, business and other information in connection regarding each of the foregoing Persons and businesses as they shall have requested. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the Patriot Actconditions specified in this Section 4.01, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification)each Lender that has signed this Agreement shall be deemed to have consented to, “know your customer” requirements, and other customary requirements, in each case approved or accepted or to be delivered 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 Loan Parties not later than five (5) Business Days Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date to the extent such information is requested not later than ten (10) Business Days prior to the Closing Date; and
(b) (i) there shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of specifying its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);objection thereto.
Appears in 1 contract
Conditions to Closing Date. The effectiveness obligations of this Agreement is the Lenders to make Term Loans hereunder on the terms provided hereunder are subject to the satisfaction or waiver waiver, prior to or concurrently with the making of such extension of credit on the Closing Date, of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The the Administrative Agent's receipt from the Parent Borrower and the Lenders of either (i) executed counterparts of this Agreement or (ii) evidence satisfactory to the Administrative Agent shall have received each (which may include a facsimile transmission or other electronic transmission of a "pdf" copy of a signature by such party of a counterpart hereof) that such party has signed a counterpart of this Agreement;
(b) the Administrative Agent's receipt of either (i) executed counterparts of the followingIntercreditor Agreement by each party thereto or (ii) evidence satisfactory to the Administrative Agent (which may include a facsimile transmission or other electronic transmission of a "pdf" copy of a signature by such party of a counterpart hereof) that such party has signed a counterpart of the Intercreditor Agreement;
(c) subject to Section 6.19 (it being understood that any document required to be delivered pursuant to Section 6.19 shall not constitute a condition precedent under this Section 4.01), the Administrative Agent's receipt of the following documents each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) either (A) executed counterparts of this Agreement executed the Guaranty by each Loan Party or (B) evidence satisfactory to the Administrative Agent (which may include a facsimile transmission or other electronic transmission of a "pdf" copy of a signature by such party of a counterpart hereof) that such party has signed a counterpart of the parties heretoGuaranty;
(ii) if requested a Note duly executed by any the Parent Borrower in favor of each Lender pursuant to Section 2.12.(a) requesting a Note at least three (3) days 3 Business Days prior to the date hereof, a Note executed by the Borrowers, payable to such Lender and complying with the terms of Section 2.12.(a)Closing Date;
(iii) a fully executed copy of the Merger Agreement[Reserved];
(iv) an a security agreement, (together with each other security agreement and security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the "Security Agreement"), duly executed by each Domestic Loan Party, together with, to the extent not already delivered to the Administrative Agent:
(A) to the extent required under the applicable Security Documents and the Intercreditor Agreement, certificates and instruments representing the Pledged Equity and Pledged Debt referred to therein accompanied by undated stock powers or instruments of transfer executed in blank;
(B) proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement;
(C) a Perfection Certificate, duly executed by a Responsible Officer of the Parent Borrower;
(D) copies of Uniform Commercial Code, tax and judgment lien searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Domestic Loan Party as debtor and that are filed in those state and county jurisdictions in which any Domestic Loan Party is organized or maintains its principal place of business (or as otherwise agreed by the Administrative Agent and the Parent Borrower), none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens and Liens securing obligations under the Existing Credit Agreement);
(E) evidence of insurance required by the terms of the Security Agreement or Section 6.07 of this Agreement;
(F) Control Agreements to the extent required by Section 6.17 hereof; and
(G) IP Security Agreements, in form and substance reasonably satisfactory to the Administrative Agent, covering the items set forth on Schedule IV to the Security Agreement; and
(v) deeds of trust, trust deeds, deeds to secure debt and mortgages (reasonably satisfactory to the Administrative Agent and its counsel) covering the Mortgaged Properties listed on Schedule 5.08(c) (together with the fixture filings and Assignments of Leases and Rents referred to therein and each other mortgage delivered pursuant to Section 6.12, in each case as amended, the "Mortgages"), duly executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem reasonably necessary or desirable in order to create, subject to the Intercreditor Agreement, a valid and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties, subject only to Permitted Liens, and that all filing, documentary, stamp, intangible and recording taxes and other fees in connection therewith have been paid,
(B) fully paid American Land Title Association Lender's Extended Coverage title insurance policies (the "Mortgage Policies"), with endorsements and in amounts reasonably acceptable to the Administrative Agent, issued by title insurers reasonably acceptable to the Administrative Agent, insuring the Mortgages to be valid Requisite Priority and subsisting Liens on the property described therein, free and clear of all Liens, excepting only Permitted Liens, and providing for such other affirmative insurance as the Administrative Agent may deem reasonably necessary,
(C) (1) American Land Title Association/American Congress on Surveying and Mapping form surveys or (2) to the extent surveys exist and the title insurer is willing to issue the applicable Mortgage Policies with survey coverage and survey endorsements acceptable to the Administrative Agent in its Permitted Discretion (in which case the appropriate Loan Party shall deliver such affidavits of no change or similar as required by the title insurer), updates thereof to the extent required by the title insurer, in each case, for which all necessary fees (where applicable) have been paid, certified to the Administrative Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the states in which the property described in such surveys is located and otherwise acceptable to the Administrative Agent,
(D) evidence of the insurance required by the terms of the Security Agreement,
(E) a completed "Life-of-Loan" Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Parent Borrower and each Loan Party relating thereto) and, if any "Building" (as defined in 12 CFR Chapter III, Section 339.2) included as part of such Mortgaged Property is located within a special flood hazard area as determined by the Federal Emergency Management Agency and if flood insurance has been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect or successor thereto) then copies of the appropriate Loan Party's application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance reasonably satisfactory to the Administrative Agent and naming the Administrative Agent as loss payee on behalf of the Secured Parties, and
(F) evidence that all other action that the Administrative Agent may deem reasonably necessary or desirable in order to create valid and subsisting Liens on the property described in the Mortgages, subject only to Permitted Liens, has been taken;
(vi) customary certificates of resolutions or other action, customary incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Loan Documents to which such Loan Party is a party or is to be a party;
(vii) customary documents and certifications evidencing that each Domestic Loan Party (A) is duly organized or formed, including certified true and correct copies of the charter of each Domestic Loan Party, and each amendment thereto, as in effect on the Closing Date, and (B) is validly existing, in good standing and qualified to engage in business in the jurisdiction of its organization, in form and substance reasonably acceptable to the Administrative Agent;
(viii) a favorable opinion of Hogan Lovells Cravath, Swaine & Xxxxx LLP, special counsel to the Company and the other Loan Parties, addressed to the Administrative Agent and the Lenders and each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(vix) favorable opinions of local counsel for the certificate or articles of incorporation or formationDomestic Loan Parties in the jurisdictions set forth on Exhibit F, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of in each Loan Party certified as of a recent date by case in form and substance reasonably satisfactory to the Secretary of State of the state of formation of such Loan PartyAdministrative Agent;
(vix) a certificate of good standing (or certificate of similar meaning) with respect attesting to each Loan Party issued as of a recent date by the Secretary of State Solvency of the state Loan Parties, on a consolidated basis, immediately before and immediately after giving effect to the Transactions, from the Chief Financial Officer of formation the Parent Borrower; and
(xi) a certificate signed by a Responsible Officer of each such Loan Party the Parent Borrower certifying that (A) the conditions specified in Section 4.01(f), (h), (i), (k) and certificates of qualification to transact business (l) have been satisfied and (B) since March 31, 2018, there has not been any event or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxationcircumstance which, as applicable) of each state singly or in which such Loan Party is required to be so qualified and where failure to be so qualified the aggregate, has resulted in or could reasonably be expected to have result in a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to ; provided, however, that each of the officers requirements set forth in clause (iv) or (v) above (except for the delivery of the Security Agreement and to the extent that a Lien on such Loan Party authorized to execute Collateral may be perfected (x) by the filing of a financing statement under the UCC or customary "short form" intellectual property filings with the United States Patent and deliver Trademark Office or the Loan Documents to which such Loan Party United States Copyright Office or (y) the delivery of stock certificates of each Domestic Subsidiary of the Parent Borrower that is a partyMaterial Subsidiary) shall not constitute conditions precedent to the Credit Extension on the Closing Date after the Parent Borrower's use of commercially reasonable efforts to provide such items on or prior to the Closing Date if the Parent Borrower agrees to deliver, or cause to be delivered, such documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within 90 days (or, in the case of each Borrowerclause (v), authorized 120 days) after the Closing Date (subject to execute extensions approved by the Administrative Agent in its reasonable discretion).
(d) Administrative Agent shall have received reasonably acceptable (i) M&E appraisals prepared by an appraiser retained by Xxxxx Fargo Bank, National Association, (ii) Intellectual Property appraisals prepared by an appraiser retained by Xxxxx Fargo Bank, National Association, and deliver on behalf of such Borrower Notices of Borrowing(iii) field examination and Inventory appraisals prepared by an appraiser retained by Xxxxx Fargo Bank, Notices of Conversion and Notices of ContinuationNational Association;
(viiie) copies certified by the Secretary The Parent Borrower shall have paid, on or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) [intentionally omitted];
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and at least 45 days prior to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) to the extent invoiced at least one (1) Business Day prior to the Closing Date, evidence that (i) all accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable to the Administrative Agent, the Lead Arranger and the Lenders paid on the Closing Date shall have been paid; pursuant to Section 2.09(c) hereof and
(xv) all necessary information in connection with the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each case to be delivered by the Loan Parties not later than five (5) Business Days prior to the Closing Date to the extent such information is requested not later than ten (10) Business Days prior to the Closing Date; and
(b) (i) there shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);
Appears in 1 contract
Conditions to Closing Date. The effectiveness of this Agreement is Each Lender’s respective Term Commitments hereunder shall become effective, on the terms and subject to the satisfaction or waiver of the following other conditions precedent (and set forth herein, upon the satisfaction or waiver (in accordance with Section 10.01) of such conditions, the Closing Date shall be deemed to have occurred):following conditions precedent:
(a) The Administrative Agent shall have received each all of the following, each properly executed by a Responsible Officer of each signing Loan Party and each dated as of the Closing Date (or, in the case of certificates of governmental officials, as of a recent date before the Closing Date), each in form and substance reasonably satisfactory to the Administrative Agent, and each accompanied by their respective required schedules and other attachments:
(i) executed counterparts of (A) this Agreement executed by from each of party hereto, (B) the parties heretoSecond Lien Intercreditor Agreement from each party thereto (other than the Administrative Agent) and (C) the corresponding principal Second Lien Loan Documents from each Loan Party party thereto;
(ii) the Security Agreement, duly executed by each party thereto, together with:
(A) certificates, if requested any, representing the Equity Interests in the Borrower and all other Pledged Interests referenced in the Security Agreement accompanied by any Lender pursuant to Section 2.12.(a) at least three (3) days prior undated stock powers executed in blank; provided that delivery of the foregoing to the date hereofFirst Lien Agent shall be deemed to satisfy the requirements of this Section 4.01(a)(ii)(A),
(B) copies of property financing statements, filed or duly prepared for filing under the Uniform Commercial Code in all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect and protect the Liens on assets of each of the Loan Parties created under the Security Agreement, covering the Collateral described in the Security Agreement, and
(C) evidence that all other actions, recordings and filings of or with respect to the Security Agreement that the Administrative Agent may deem reasonably necessary or desirable in order to perfect and protect the Liens created thereby shall have been taken, completed or otherwise provided for in a Note manner reasonably satisfactory to the Administrative Agent (including receipt of duly executed by the Borrowerspayoff letters, payable to such Lender customary lien searches and complying with the terms copies of Section 2.12.(aUCC-3 termination statements duly prepared for filing);
(iii) a fully an Intellectual Property Security Agreement (in the form of Exhibit B to the Security Agreement), duly executed copy of by each Loan Party that owns intellectual property that is required to be pledged in accordance with the Merger Security Agreement;
(iv) a certificate for each Loan Party certifying the Organizational Documents, good standing certificates in the jurisdiction of organization (if applicable), resolutions, and incumbency certificates; and
(v) an opinion of Hogan Lovells Xxxxxxxx & Forester LLP, counsel to the Company and the other Loan Parties, addressed to the Administrative Agent and the Lenders and on the Closing Date, in form and substance reasonably satisfactory to the Administrative Agent;.
(vb) the certificate or articles of incorporation or formationSince December 31, articles of organization2017, certificate of limited partnership or other comparable organizational document no Material Adverse Effect shall have occurred.
(if anyc) of each Each Loan Party certified as of a recent date shall have provided the documentation and other information reasonably requested in writing at least five (5) Business Days prior to the Closing Date by the Secretary Lenders in connection with satisfactory compliance clearing, including, without limitation, in respect of State of applicable “know your customer” and anti-money-laundering rules and regulations and the state of formation of such Loan Party;PATRIOT Act, in each case at least three (3) Business Days prior to the Closing Date.
(vid) a certificate of good standing (or certificate of similar meaning) The Administrative Agent shall have received insurance certificates with respect to each Loan Party issued the properties and business of Parent and its Subsidiaries, as of set forth in Section 6.07.
(e) The Administrative Agent shall have received a recent date Note executed by the Secretary Borrower in favor of State each Lender requesting a Note reasonably in advance of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;Closing Date.
(viif) The Administrative Agent shall have received a solvency certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, in the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) [intentionally omitted];
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer or other officer with equivalent duties of the Parent;Borrower (after giving effect to the consummation of the Transactions) substantially in the form attached hereto as Exhibit H.
(xiig) [intentionally omitted];
RBC Capital Markets shall have received (ai) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent and its Subsidiaries, in each case, for the three most recently completed fiscal years ended December 31at least one hundred twenty (120) days prior to the Closing Date, 2016, December 31, 2017 and December 31, 2018 and (bii) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent and its Subsidiaries, in each case, for each subsequent fiscal quarter ending after December 31, 2018 and ended at least 45 forty-five (45) days prior to the Closing Date; provided that ) and (iii) an unaudited pro forma consolidated balance sheet of the Parent’s public filing Borrower and its Subsidiaries as of any required financial statements with the SEC shall constitute delivery date of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) the most recent consolidated balance sheet delivered pursuant to the extent invoiced at least one preceding subclause (1i) Business Day or (ii), as applicable, and a pro forma statement of operations and Consolidated EBITDA for the twelve-month period ending on such balance sheet date, in each case adjusted to give effect to the Transactions, the other transactions related thereto and such other adjustments as are reflected in the financial model delivered to RBC Capital Markets prior to the Closing Date, evidence that all .
(h) All accrued costs, fees and expenses (including including, without limitation, legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letteradvisors) and other compensation due and payable to the Administrative Agent, the Lead Arranger Arrangers and the Lenders and required by the Engagement Letter or the Fee Letter to be paid on the Closing Date shall have been paid; and
(xv) all necessary information in connection with the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each the case to be delivered by the Loan Parties not later than five (5) Business Days prior to the Closing Date of expenses, to the extent such information is requested not later than ten a reasonably detailed invoice has been delivered to the Borrower at least two (102) Business Days prior to the Closing Date; andprovided that the foregoing amounts may, at the Borrower’s option, be offset against the proceeds of the Initial Term Facility funded on the Closing Date.
(i) After giving effect to the Closing Date Refinancing and the other Transactions contemplated hereby, Parent, the Borrower and their respective Subsidiaries shall have outstanding no indebtedness or disqualified equity other than the loans and other extensions of credit under the Initial Term Facility and other indebtedness permitted by this Agreement and the other Loan Documents.
(j) The Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower, in form and substance reasonably satisfactory to the Administrative Agent, certifying as to compliance with the conditions set forth in clause (b) (i) there shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger this Section 4.01 and in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood and agreed that clauses (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to of Section 4.02. Without limiting the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request generality of the Company or any affiliate thereof that would but provisions of Section 9.03, for such request constitute a “Company Material Adverse Effect”purposes of determining compliance with the conditions specified in this Section 4.01, the Administrative Agent and each Lender as of the Closing Date shall in each case be deemed to have consented to, approved or accepted or to be materially adverse satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the Lenders);Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions to Closing Date. The effectiveness occurrence of this Agreement the Closing Date is subject to the satisfaction (or waiver waiver) of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The Administrative Agent shall have received each Agent’s receipt of the following:, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (to the extent applicable), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) executed counterparts of this Agreement executed by from the Borrower, each of Closing Date Guarantor, each Lender and the parties heretoAdministrative Agent;
(ii) if requested Notes executed by any the Borrower in favor of each Lender pursuant to Section 2.12.(a) requesting Notes at least three (3) days Business Days prior to the date hereof, a Note executed by the Borrowers, payable to such Lender and complying with the terms of Section 2.12.(a)Closing Date;
(iii) a fully executed copy certificate of the Merger Agreement;
(iv) an opinion of Hogan Lovells LLPeach Loan Party, counsel to the Company and the other Loan Parties, addressed to the Administrative Agent and the Lenders and in form and substance reasonably satisfactory to the Administrative Agent, executed by any Responsible Officer of such Loan Party, and including or attaching the documents referred to in subclause (iv) below;
(viv) the certificate or articles a copy of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if anyA) each Organization Document of each Loan Party certified certified, to the extent applicable, as of a recent date by the Secretary of State applicable Governmental Authority, (B) signature and incumbency certificates of the state of formation of such Loan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) Responsible Officers of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver executing the Loan Documents to which such Loan Party it is a party, in (C) resolutions of the case Board of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing Directors and/or similar functions) governing bodies of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity approving and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize authorizing the execution, delivery and performance of the Loan Documents to which it is a party;
, certified by its secretary, an assistant secretary or a Responsible Officer as being in full force and effect without modification or amendment, and (ix) [intentionally omitted];
(x) [intentionally omitted];
(xiD) a Solvency Certificate from the chief financial officer of the Parent;
good standing certificate (xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and at least 45 days prior to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) to the extent invoiced at least one (1such concept exists) Business Day prior to from the Closing Dateapplicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, evidence that all accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable to the Administrative Agent, the Lead Arranger and the Lenders on the Closing Date shall have been paidorganization or formation; and
(xvv) all necessary information in connection with the Patriot Act, the Beneficial Ownership Regulation a customary written opinion (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each case to be delivered by the Loan Parties not later than five (5) Business Days prior addressed to the Closing Date to Administrative Agent and the extent such information is requested not later than ten (10Lenders) Business Days prior to the Closing Date; and
(b) of (i) there shall not have occurred on or after Xxxxxxxx, Lipton, Xxxxx & Xxxx, special counsel for the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement)Loan Parties, (ii) consent or waiver given by Xxxxxx LLP, California counsel for the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”Loan Parties, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);and
Appears in 1 contract
Samples: Credit Agreement (Broadcom Inc.)
Conditions to Closing Date. The effectiveness obligation of this Agreement each Lender to make a Borrowing hereunder on the Closing Date is subject to the satisfaction or waiver of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The Administrative Agent shall have received each Agent’s receipt of the following:
, each of which shall be originals or facsimiles (ifollowed promptly by originals) counterparts of this Agreement unless otherwise specified, each properly executed by each a Responsible Officer of the parties hereto;
(ii) if requested by any Lender pursuant to Section 2.12.(a) at least three (3) days prior to the date hereof, a Note executed by the Borrowers, payable to such Lender and complying with the terms of Section 2.12.(a);
(iii) a fully executed copy of the Merger Agreement;
(iv) an opinion of Hogan Lovells LLP, counsel to the Company and the other signing Loan Parties, addressed to the Administrative Agent and the Lenders and Party each in form and substance reasonably satisfactory to the Administrative AgentAgent and its legal counsel:
(i) a Committed Loan Notice in accordance with the requirements hereof;
(ii) executed counterparts of this Agreement and the Pre-Funding Security Agreement;
(iii) a Note executed by the Borrower in favor of each Lender that has requested a Note at least three (3) Business Days in advance of the Closing Date;
(iv) a UCC-1 financing statement naming the Borrower as debtor and the Administrative Agent as secured party in appropriate form for filing with the Secretary of State of Delaware and containing a description of the Pre-Funding Security Account and the Pre-Funding Security Account Funds as collateral;
(v) such certificates of good standing from the certificate or articles applicable secretary of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a recent date by the Secretary of State state of the state of formation organization of such Loan Party;
(vi) a certificate Holdings, Sub Holdco and the Borrower, certificates of good standing (resolutions or certificate other action, incumbency certificates and/or other certificates of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation Responsible Officers of each such Loan Party of Holdings, Sub Holdco and certificates of qualification to transact business or other comparable certificates issued the Borrower as of a recent date by each Secretary of State (the Administrative Agent may reasonably require evidencing the identity, authority and any state department of taxation, as applicable) capacity of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party Responsible Officer thereof authorized to execute act as a Responsible Officer in connection with this Agreement and deliver the other Loan Documents to which such Loan Party Person is a partyparty or is to be a party on the Closing Date; and
(vi) an opinion from Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, New York counsel to the Loan Parties, substantially in the form of Exhibit G-1, an opinion from Xxxxxx & Xxxxxx LLP, special counsel to the Loan Parties, substantially in the form of Exhibit G-2, and an opinion from Young Xxxxxxx Stargatt & Xxxxxx, LLP, Delaware counsel to the Loan Parties, in form reasonably acceptable to the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;Administrative Agent.
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) [intentionally omitted];
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets The Arrangers shall have received (i) the Annual Financial Statements and related statements of income, changes in equity and cash flows of (ii) the Parent for each subsequent fiscal quarter ending after December 31, 2018 and Quarterly Financial Statements.
(c) The Arrangers shall have received the Pro Forma Financial Statements.
(d) The Arrangers shall have received at least 45 five (5) days prior to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) to the extent invoiced Date all documentation and other information reasonably requested in writing by them at least one (1) Business Day prior to the Closing Date, evidence that all accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable to the Administrative Agent, the Lead Arranger and the Lenders on the Closing Date shall have been paid; and
(xv) all necessary information in connection with the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each case to be delivered by the Loan Parties not later than five (5) Business Days prior to the Closing Date to the extent such information is requested not later than ten (10) Business Days prior to the Closing Date; andDate in order to allow the Arrangers and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(be) The Administrative Agent shall have received the Initial Interest Gross-Up Amount from the Borrower for deposit into the Pre-Funding Security Account.
(if) there The Specified Representations shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger be true and correct in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned all material respects (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”)or, if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded qualified by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company materiality,” “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof Closing Date Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that would but for such request constitute a “Company Material Adverse Effect”, has signed this Agreement shall in each case be deemed to have consented to, approved or accepted or to be materially adverse 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 Lenders);proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions to Closing Date. The effectiveness obligations of this Agreement is the Lenders to make Term Loans hereunder on the terms provided hereunder are subject to the satisfaction or waiver waiver, prior to or concurrently with the making of such extension of credit on the Closing Date, of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The the Administrative Agent's receipt from the Parent Borrower and the Lenders of either (i) executed counterparts of this Agreement or (ii) evidence satisfactory to the Administrative Agent shall have received each (which may include a facsimile transmission or other electronic transmission of a "pdf" copy of a signature by such party of a counterpart hereof) that such party has signed a counterpart of this Agreement;
(b) the Administrative Agent's receipt of either (i) executed counterparts of the followingIntercreditor Agreement by each party thereto or (ii) evidence satisfactory to the Administrative Agent (which may include a facsimile transmission or other electronic transmission of a "pdf" copy of a signature by such party of a counterpart hereof) that such party has signed a counterpart of the Intercreditor Agreement;
(c) subject to Section 6.19 (it being understood that any document required to be delivered pursuant to Section 6.19 shall not constitute a condition precedent under this Section 4.01), the Administrative Agent's receipt of the following documents each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) either (A) executed counterparts of this Agreement executed the Guaranty by each Loan Party or (B) evidence satisfactory to the Administrative Agent (which may include a facsimile transmission or other electronic transmission of a "pdf" copy of a signature by such party of a counterpart hereof) that such party has signed a counterpart of the parties heretoGuaranty;
(ii) if requested a Note duly executed by any the Parent Borrower in favor of each Lender pursuant to Section 2.12.(a) requesting a Note at least three (3) days 3 Business Days prior to the date hereof, a Note executed by the Borrowers, payable to such Lender and complying with the terms of Section 2.12.(a)Closing Date;
(iii) a fully executed copy of the Merger Agreement[Reserved];
(iv) an a security agreement, (together with each other security agreement and security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the "Security Agreement"), duly executed by each Domestic Loan Party, together with, to the extent not already delivered to the Administrative Agent:
(A) to the extent required under the applicable Security Documents and the Intercreditor Agreement, certificates and instruments representing the Pledged Equity and Pledged Debt referred to therein accompanied by undated stock powers or instruments of transfer executed in blank;
(B) proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement;
(C) a Perfection Certificate, duly executed by a Responsible Officer of the Parent Borrower;
(D) copies of Uniform Commercial Code, tax and judgment lien searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Domestic Loan Party as debtor and that are filed in those state and county jurisdictions in which any Domestic Loan Party is organized or maintains its principal place of business (or as otherwise agreed by the Administrative Agent and the Parent Borrower), none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens and Liens securing obligations under the Existing Credit Agreement);
(E) evidence of insurance required by the terms of the Security Agreement or Section 6.07 of this Agreement;
(F) Control Agreements to the extent required by Section 6.17 hereof; and
(G) IP Security Agreements, in form and substance reasonably satisfactory to the Administrative Agent, covering the items set forth on Schedule IV to the Security Agreement; and
(v) deeds of trust, trust deeds, deeds to secure debt and mortgages (reasonably satisfactory to the Administrative Agent and its counsel) covering the Mortgaged Properties listed on Schedule 5.08(c) (together with the fixture filings and Assignments of Leases and Rents referred to therein and each other mortgage delivered pursuant to Section 6.12, in each case as amended, the "Mortgages"), duly executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem reasonably necessary or desirable in order to create, subject to the Intercreditor Agreement, a valid and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties, subject only to Permitted Liens, and that all filing, documentary, stamp, intangible and recording taxes and other fees in connection therewith have been paid,
(B) fully paid American Land Title Association Lender's Extended Coverage title insurance policies (the "Mortgage Policies"), with endorsements and in amounts reasonably acceptable to the Administrative Agent, issued by title insurers reasonably acceptable to the Administrative Agent, insuring the Mortgages to be valid Requisite Priority and subsisting Liens on the property described therein, free and clear of all Liens, excepting only Permitted Liens, and providing for such other affirmative insurance as the Administrative Agent may deem reasonably necessary,
(C) (1) American Land Title Association/American Congress on Surveying and Mapping form surveys or (2) to the extent surveys exist and the title insurer is willing to issue the applicable Mortgage Policies with survey coverage and survey endorsements acceptable to the Administrative Agent in its Permitted Discretion (in which case the appropriate Loan Party shall deliver such affidavits of no change or similar as required by the title insurer), updates thereof to the extent required by the title insurer, in each case, for which all necessary fees (where applicable) have been paid, certified to the Administrative Agent and the issuer of the Mortgage Policies in a manner satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the states in which the property described in such surveys is located and otherwise acceptable to the Administrative Agent,
(D) evidence of the insurance required by the terms of the Security Agreement,
(E) a completed "Life-of-Loan" Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Parent Borrower and each Loan Party relating thereto) and, if any "Building" (as defined in 12 CFR Chapter III, Section 339.2) included as part of such Mortgaged Property is located within a special flood hazard area as determined by the Federal Emergency Management Agency and if flood insurance has been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect or successor thereto) then copies of the appropriate Loan Party's application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance reasonably satisfactory to the Administrative Agent and each Lender and naming the Administrative Agent as loss payee on behalf of the Secured Parties, and
(F) evidence that all other action that the Administrative Agent may deem reasonably necessary or desirable in order to create valid and subsisting Liens on the property described in the Mortgages, subject only to Permitted Liens, has been taken;
(vi) customary certificates of resolutions or other action, customary incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Loan Documents to which such Loan Party is a party or is to be a party;
(vii) customary documents and certifications evidencing that each Domestic Loan Party (A) is duly organized or formed, including certified true and correct copies of the charter of each Domestic Loan Party, and each amendment thereto, as in effect on the Closing Date, and (B) is validly existing, in good standing and qualified to engage in business in the jurisdiction of its organization, in form and substance reasonably acceptable to the Administrative Agent;
(viii) a favorable opinion of Hogan Lovells Cravath, Swaine & Xxxxx LLP, special counsel to the Company and the other Loan Parties, addressed to the Administrative Agent and the Lenders and each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(vix) favorable opinions of local counsel for the certificate or articles of incorporation or formationDomestic Loan Parties in the jurisdictions set forth on Exhibit F, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of in each Loan Party certified as of a recent date by case in form and substance reasonably satisfactory to the Secretary of State of the state of formation of such Loan PartyAdministrative Agent;
(vix) a certificate of good standing (or certificate of similar meaning) with respect attesting to each Loan Party issued as of a recent date by the Secretary of State Solvency of the state Loan Parties, on a consolidated basis, immediately before and immediately after giving effect to the Transactions, from the Chief Financial Officer of formation the Parent Borrower; and
(xi) a certificate signed by a Responsible Officer of each such Loan Party the Parent Borrower certifying that (A) the conditions specified in Section 4.01(g), (h), (j) and certificates of qualification to transact business (k) have been satisfied and (B) since March 31, 2018, there has not been any event or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxationcircumstance which, as applicable) of each state singly or in which such Loan Party is required to be so qualified and where failure to be so qualified the aggregate, has resulted in or could reasonably be expected to have result in a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to ; provided, however, that each of the officers requirements set forth in clause (iv) or (v) above (except for the delivery of the Security Agreement and to the extent that a Lien on such Loan Party authorized to execute Collateral may be perfected (x) by the filing of a financing statement under the UCC or customary "short form" intellectual property filings with the United States Patent and deliver Trademark Office or the Loan Documents to which such Loan Party United States Copyright Office or (y) the delivery of stock certificates of each Domestic Subsidiary of the Parent Borrower that is a partyMaterial Subsidiary) shall not constitute conditions precedent to the Credit Extension on the Closing Date after the Parent Borrower's use of commercially reasonable efforts to provide such items on or prior to the Closing Date if the Parent Borrower agrees to deliver, or cause to be delivered, such documents and instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within 90 days (or, in the case of each Borrowerclause (v), authorized 120 days) after the Closing Date (subject to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;extensions approved by the Administrative Agent in its reasonable discretion).
(viiid) copies certified by the Secretary The Parent Borrower shall have paid, on or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) [intentionally omitted];
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and at least 45 days prior to the Closing Date; provided that , (i) all fees and expenses required to be paid on the Parent’s public filing Closing Date pursuant to Section 2.09 hereof and (ii) all other fees and expenses (including the Attorney Costs of any Xxxxxxxx Xxxx Ltd.) required financial statements with the SEC to be paid pursuant to Section 10.04(a) for which invoices shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) have been presented to the extent invoiced Parent Borrower at least one (1) 1 Business Day prior to the Closing Date, evidence that all accrued costs, fees .
(e) All Indebtedness of the Parent Borrower and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed its Subsidiaries under the Commitment Letter) Existing Credit Agreement shall have been repaid in full, all commitments in respect thereof shall have been terminated and other compensation due all guarantees therefor and payable to security therefor shall be released (or substantially concurrently with the Administrative Agent, the Lead Arranger and the Lenders effectiveness of this Agreement on the Closing Date shall be repaid, terminated and released), and the Administrative Agent shall have been paid; andreceived pay-off letters in form and substance reasonably satisfactory to it from the administrative agent under the Existing Credit Agreement evidencing such repayment, termination and release.
(xvf) all necessary The Parent Borrower shall have provided to the Administrative Agent (i) the documentation and other information in connection with that is required by regulatory authorities under applicable "know-your-customer" and anti-money laundering rules and regulations, including the Patriot Act, with respect to the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each case to be delivered by the Domestic Loan Parties not later than five (5) Business Days prior to the Closing Date to the extent such information is reasonably requested not later than ten (10) by the Administrative Agent or any Lender at least 10 Business Days prior to the Closing Date; and
(b) (i) there shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first extent applicable, a Beneficial Ownership Certification with respect to the Lenders’ Tranche A-1 Commitments and second Parent Borrower if it qualifies as a "legal entity customer" under the Beneficial Ownership Regulation to the Lenders’ Tranche A-2 Commitmentsextent requested by the Administrative Agent or any Lender, in each case, ratably the results of which are reasonably satisfactory to the Administrative Agent and any such Lender.
(g) The parties thereto shall have executed and delivered the ABL Credit Agreement and the other ABL Loan Documents with at least $450,000,000 in accordance with each Lender’s Applicable Commitment Percentageaggregate commitments from the lenders under the ABL Credit Agreement.
(h) The parties thereto shall have executed and (b) any delivered the Junior Term Loan Credit Agreement and the other Junior Term Loan Documents and incurred at least $40,000,000 in aggregate principal amount of loans from the lenders under the Junior Term Loan Credit Agreement.
(i) amendment [Reserved]
(j) The representations and warranties of the Parent Borrower and each other Loan Party contained in Article V or modification 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 on the Closing Date, except to the definition 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 “Company such earlier date; provided that, to the extent such representations and warranties are qualified with "materiality" or "Material Adverse Effect” " or similar terms, such representations and warranties shall be true and correct in all respects.
(as such term is defined in the Merger Agreement), (iik) consent No Default or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”Event of Default shall exist, or (iii) action would result from the Credit Extension on the Closing Date or omission taken at from the request application of the Company or any affiliate thereof proceeds therefrom. Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that would but for such request constitute a “Company Material Adverse Effect”, has signed this Agreement shall in each case be deemed to have consented to, approved or accepted or to be materially adverse 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 Lenders);proposed Closing Date specifying its objection thereto. The Administrative Agent shall promptly notify the Parent Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Conditions to Closing Date. The effectiveness of this Agreement credit facility is subject to the satisfaction or waiver of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The Administrative Agent shall have received each Agent’s (or its counsel) receipt of the following:
, each of which shall be originals or telecopies (ifollowed promptly by originals) counterparts of this Agreement unless otherwise specified, each properly executed by each a Responsible Officer of the parties hereto;
Borrower (ii) if requested by any Lender pursuant to Section 2.12.(a) at least three as applicable), each dated the Closing Date (3) days prior to or, in the date hereofcase of certificates of governmental officials, a Note executed by recent date before the Borrowers, payable to such Lender Closing Date) and complying with the terms of Section 2.12.(a);
(iii) a fully executed copy of the Merger Agreement;
(iv) an opinion of Hogan Lovells LLP, counsel to the Company and the other Loan Parties, addressed to the Administrative Agent and the Lenders and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) executed counterparts of this Agreement; 42 Cboe Global Markets, Inc. – Credit Agreement (Term Loan Credit Facility)
(ii) a Request for Credit Extension in accordance with the requirements hereof;
(iii) [Reserved];
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party;
(v) such documents and certifications as the certificate Administrative Agent may reasonably require to evidence that the Borrower is duly organized or articles of incorporation or formationformed, articles of organizationand that the Borrower is validly existing, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan Party;
(vi) a certificate of in good standing (and qualified to engage in business in each jurisdiction where its ownership, lease or certificate operation of similar meaning) with respect properties or the conduct of its business requires such qualification, except to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where extent that failure to be do so qualified could not reasonably be expected to have a Material Adverse Effect;
(vi) a favorable opinion letter of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and the Initial Lender and covering such matters relating to the Loan Documents as the Administrative Agent may reasonably require;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each a Responsible Officer of the officers Borrower certifying (A) that the representations and warranties of such Loan Party authorized to execute the Borrower contained in Sections 5.01(a), 5.01(b)(ii), 5.02(a) and deliver (c) and 5.04 are true and correct on and as of the Loan Documents to which such Loan Party is a party, in Closing Date and (B) the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;current Debt Ratings (if any); and
(viii) copies certified by such other assurances, certificates, documents, consents or opinions as the Secretary Administrative Agent or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;Arranger reasonably may require.
(ix) [intentionally omitted];
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows Each of the Parent for each subsequent fiscal quarter ending after December 31, 2018 representations and at least 45 days prior to warranties of the Borrower contained in Article V or any other Loan Document shall be true and correct in all material respects on and as of Closing Date; provided provided, that the Parent’s public filing of any required financial statements with the SEC representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);be true and correct (after giving effect to any qualification therein) in all respects.
(xivc) to No Default shall exist, or would result from the extent invoiced Credit Extensions or from the application of the proceeds therefrom.
(d) The Administrative Agent shall have received, at least one three (1) Business Day prior to the Closing Date, evidence that all accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable to the Administrative Agent, the Lead Arranger and the Lenders on the Closing Date shall have been paid; and
(xv) all necessary information in connection with the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each case to be delivered by the Loan Parties not later than five (53) Business Days prior to the Closing Date Date, (i) all documentation and other information about the Borrower required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), reasonably requested in writing by the Administrative Agent (on behalf of the Initial Lender) and (ii) to the extent any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such information is requested not later than Borrower, that each Lender that so requests, in each case at least ten (10) Business Days prior to the Closing Date; and. 43 Cboe Global Markets, Inc. – Credit Agreement (Term Loan Credit Facility)
(be) (i) there shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration Any fees required to be paid under on or before the Merger Agreement Closing Date shall have been paid.
(f) Unless waived by the “Cash Merger Consideration”)Administrative Agent, the Borrower shall have paid all reasonable and documented Attorney Costs (directly to such counsel if funded with equity requested by the Administrative Agent) of the Administrative Agent to the extent invoiced at least three Business Days prior to the Closing Date, plus such additional amounts of Attorney Costs as shall constitute its reasonable estimate of such Attorney Costs incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts among the Borrower and the Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, the Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be materially adverse 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 the Lender prior to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Cboe Global Markets, Inc.)
Conditions to Closing Date. The effectiveness occurrence of this Agreement the Closing Date is subject to the satisfaction or waiver of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The Administrative Agent shall have received each Agent’s receipt of the following:
, each of which shall be originals or facsimiles (ifollowed promptly by originals) counterparts of this Agreement or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by each a Responsible Officer of the parties hereto;
signing Loan Party, each dated the Closing Date (ii) if requested by any Lender pursuant to Section 2.12.(a) at least three (3) days prior to or, in the date hereofcase of certificates of governmental officials, a Note executed by recent date before the Borrowers, payable to such Lender Closing Date) and complying with the terms of Section 2.12.(a);
(iii) a fully executed copy of the Merger Agreement;
(iv) an opinion of Hogan Lovells LLP, counsel to the Company and the other Loan Parties, addressed to the Administrative Agent and the Lenders and each in form and substance reasonably satisfactory to Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Subsidiary Guaranty, in each case sufficient in number for distribution to Administrative Agent, each Lender, Parent, and Borrower;
(vii) the certificate or articles a Note executed by Borrower in favor of incorporation or formation, articles each Lender requesting a Note;
(iii) such certificates of organization, certificate of limited partnership resolutions or other comparable organizational document (if any) action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party certified as of a recent date by Administrative Agent may require evidencing the Secretary of State of the state of formation of such Loan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation identity, authority and capacity of each such Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Party and certificates of qualification Documents to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required a party;
(iv) such documents and certifications as Administrative Agent may reasonably require to be so evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified and to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to be do so qualified could not reasonably be expected to have a Material Adverse Effect;
(viiv) favorable opinions of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties, and Xxxxxxx LLP, counsel to Borrower and Parent, each addressed to Administrative Agent and each Lender, as to the matters concerning the Loan Parties and the Loan Documents as Administrative Agent may reasonably request;
(vi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) a Responsible Officer of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, in the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of either (A) the by-laws attaching copies of such Loan Partyall consents, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case licenses and approvals of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize Governmental Authority required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of Parent, for itself and on behalf of Borrower, certifying (A) that the conditions specified in Sections 6.02(a) and (b) have been satisfied, and (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;
(viii) a duly completed Unencumbered Property Report and Compliance Certificate certifying compliance with the financial covenants set forth in Section 9.13, in each case prepared as of March 31, 2018, on a proforma basis, and signed by a Responsible Officer of Parent, for itself and on behalf of Borrower;
(ix) [intentionally omitted];such other certificates, documents, instruments or information as Administrative Agent or Required Lenders may reasonably require.
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and at least 45 days prior to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) to the extent invoiced at least one (1) Business Day prior to the Closing Date, evidence that all accrued costs, Any fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable paid pursuant to the Administrative Agent, the Lead Arranger and the Lenders Loan Documents on or before the Closing Date shall have been paid; and.
(xvc) Unless waived by Administrative Agent, Borrower shall have paid all necessary information in connection fees, charges and disbursements of counsel to Administrative Agent (directly to such counsel if requested by Administrative Agent) required to be paid pursuant to the Loan Documents to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between Borrower and Administrative Agent). Without limiting the generality of the provisions of the last paragraph of Section 11.03, for purposes of determining compliance with the Patriot Actconditions specified in this Section 6.01, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification)each Lender that has signed this Agreement shall be deemed to have consented to, “know your customer” requirements, and other customary requirements, in each case approved or accepted or to be delivered satisfied with, each document or other matter required thereunder to be consented to or approved by the Loan Parties not later than five (5) Business Days or acceptable or satisfactory to a Lender unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date to the extent such information is requested not later than ten (10) Business Days prior to the Closing Date; and
(b) (i) there shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of specifying its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);objection thereto.
Appears in 1 contract
Conditions to Closing Date. The effectiveness obligations of this Agreement the Lenders to make Loans hereunder shall not become effective until the Closing Date which is subject scheduled to occur upon the satisfaction or waiver of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The Administrative Agent shall have received each Agent’s receipt of the following:
, each of which shall be originals or facsimiles (ifollowed promptly by originals) counterparts of this Agreement and unless otherwise specified, each properly executed by each an authorized officer of the parties hereto;
signing Loan Party, each dated the Closing Date (ii) if requested by any Lender pursuant to Section 2.12.(a) at least three (3) days prior to or, in the date hereofcase of certificates of governmental officials, a Note executed by recent date before the Borrowers, payable to such Lender Closing Date) and complying with the terms of Section 2.12.(a);
(iii) a fully executed copy of the Merger Agreement;
(iv) an opinion of Hogan Lovells LLP, counsel to the Company and the other Loan Parties, addressed to the Administrative Agent and the Lenders and each in form and substance reasonably satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, each dated as of the Closing Date;
(ii) Notes executed by the Borrower in favor of each Lender requesting such Notes, each dated as of the Closing Date;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of officers of each Loan Party as the Administrative Agent may require to establish the identities of and verify the authority and capacity of each officer thereof authorized to act in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such evidence as the Administrative Agent may reasonably require to verify that each Loan Party and the General Partner is duly organized or formed, validly existing, in good standing in the jurisdiction of its organization;
(v) a certificate signed by an a Responsible Officer of the certificate Borrower certifying (A) that the representations and warranties contained in Article V are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if anywarranties that are already qualified as to materiality in the text thereof) of each Loan Party certified on and as of a recent date by the Secretary such date, (B) no Default or Event of State of the state of formation Default has occurred and is continuing as of such Loan Party;
date, (viC) since December 31, 2010 there has occurred no event or condition that has had or could be reasonably expected to have, either individually or in the aggregate, a certificate of good standing Material Adverse Effect, (D) there is no litigation, investigation or certificate of similar meaning) with respect proceeding known to each Loan Party issued as of a recent date by and affecting the Secretary of State of Borrower or any Borrower Affiliate for which the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party Borrower is required to give notice pursuant to Section 6.03(c) (or, if there is any such litigation, investigation or proceeding, then a notice containing the information required by Section 6.03(c) shall be so qualified given concurrently with the delivery of the certificate given pursuant to this clause (v)), and where failure to be so qualified (E) no action, suit, investigation or proceeding is pending or threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower or any Borrower Affiliate, or any of their respective properties, that could reasonably be expected to have a Material Adverse Effect;
(vi) receipt of audited financial statements of the MLP as of December 31, 2010, unaudited financial statements of the MLP as of June 30, 2011, and such other financial information as the Administrative Agent may reasonably request;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary opinions from (or other individual performing similar functionsi) of Xxxxxx & Xxxxxx LLP, counsel to each Loan Party with respect and the General Partner, and (ii) Xxxxxxxx Xxxx-Xxxxxx, counsel to each of the officers of such Loan Party authorized and the General Partner, in each case, addressed to execute the Administrative Agent and deliver each Lender, as to the matters concerning the Loan Parties and the Loan Documents to which such Loan Party is a party, in as the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of ContinuationAdministrative Agent may reasonably request;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance evidence of the Loan Documents to which it is a party;simultaneous closing and effectiveness of the Multi-Year Credit Agreement; and
(ix) [intentionally omitted];such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and at least 45 days prior to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) to the extent invoiced at least one (1) Business Day prior to the Closing Date, evidence that all accrued costs, Any fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable to the Administrative Agent, the Lead Arranger and the Lenders on at the Closing Date shall have been paid; and.
(xvc) all necessary information in connection The Borrower shall have paid Attorney Costs of the Administrative Agent to the extent invoiced prior to, or on, the Closing Date. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the Patriot Actconditions specified in this Section 4.01, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification)each Lender that has signed this Agreement shall be deemed to have consented to, “know your customer” requirements, and other customary requirements, in each case approved or accepted or to be delivered 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 Loan Parties not later than five (5) Business Days Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date to specifying its objection thereto. The Administrative Agent shall notify the extent such information is requested not later than ten (10) Business Days prior to Borrower and the Lenders of the Closing Date; and
(b) (i) there , and such notice shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood conclusive and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);binding.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Sunoco Logistics Partners L.P.)
Conditions to Closing Date. The effectiveness obligations of this Agreement is (x) the Lenders to make Revolving Credit Loans and (y) any L/C Issuer to issue Letters of Credit or increase the stated amounts of Letters of Credit hereunder on the terms provided hereunder are subject to the satisfaction or waiver waiver, prior to or concurrently with the making of such extension of credit on the Closing Date, of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The the Administrative Agent shall have received Agent’s receipt from each of the followingBorrowers and the Lenders of either (i) executed counterparts of this Agreement or (ii) evidence satisfactory to the Administrative Agent (which may include a facsimile transmission or other Electronic Transmission of a “pdf’ copy of a signature by such party of a counterpart hereof) that such party has signed a counterpart of this Agreement;
(b) [reserved];
(c) subject to Section 6.19 (it being understood that any document required to be delivered pursuant to Section 6.19 shall not constitute a condition precedent under this Section 4.01), the Administrative Agent’s receipt of the following documents each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) either (A) executed counterparts of this Agreement executed the Guaranty by each Loan Party or (B) evidence satisfactory to the Administrative Agent (which may include a facsimile transmission or other Electronic Transmission of a “pdf’ copy of a signature by such party of a counterpart hereof) that such party has signed a counterpart of the parties heretoGuaranty;
(ii) if requested a Note duly executed by any the Borrowers in favor of each Lender pursuant to Section 2.12.(a) requesting a Note at least three (3) days 3 Business Days prior to the date hereof, a Note executed by the Borrowers, payable to such Lender and complying with the terms of Section 2.12.(a)Closing Date;
(iii) a fully executed copy of the Merger Agreementcompleted Borrowing Base Certificate;
(iv) an a security agreement, (together with each other security agreement and security agreement supplement delivered pursuant to Section 6.12, in each case as amended, the “Security Agreement”), duly executed by each Loan Party, together with, to the extent not already delivered to the Administrative Agent:
(A) to the extent required under the applicable Security Documents, certificates and instruments representing the Pledged Equity and Pledged Debt referred to therein accompanied by undated stock powers or instruments of transfer executed in blank;
(B) proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem reasonably necessary or desirable in order to perfect the Liens created under the Security Agreement, covering the Collateral described in the Security Agreement;
(C) a Perfection Certificate, duly executed by a Responsible Officer of the Parent Borrower;
(D) copies of Uniform Commercial Code, tax and judgment lien searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business (or as otherwise agreed by the Administrative Agent and the Parent Borrower), none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens and Liens securing obligations under the Existing Credit Agreement); and
(E) IP Security Agreements, in form and substance reasonably satisfactory to the Administrative Agent, covering the items set forth on Schedule IV to the Security Agreement; and
(v) customary certificates of resolutions or other action, customary incumbency certificates and/or other certificates of Responsible Officers of each Loan Party evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Loan Documents to which such Loan Party is a party or is to be a party;
(vi) customary documents and certifications evidencing that each Loan Party (A) is duly organized or formed, including certified true and correct copies of the charter of each Loan Party, and each amendment thereto, as in effect on the Closing Date, and (B) is validly existing, in good standing and qualified to engage in business in the jurisdiction of its organization, in form and substance reasonably acceptable to the Administrative Agent;
(vii) a favorable opinion of Hogan Lovells Cravath, Swaine & Xxxxx LLP, special counsel to the Company and the other Loan Parties, addressed to the Administrative Agent and the Lenders and each Lender, in form and substance reasonably satisfactory to the Administrative Agent;
(vviii) favorable opinions of local counsel for the certificate or articles of incorporation or formationLoan Parties in the jurisdictions set forth on Exhibit F, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of in each Loan Party certified as of a recent date by case in form and substance reasonably satisfactory to the Secretary of State of the state of formation of such Loan PartyAdministrative Agent;
(viix) a certificate of good standing (or certificate of similar meaning) with respect attesting to each Loan Party issued as of a recent date by the Secretary of State Solvency of the state Loan Parties, on a consolidated basis, immediately before and immediately after giving effect to the Transactions, from the Chief Financial Officer of formation the Parent Borrower;
(x) a certificate signed by a Responsible Officer of each such Loan Party the Borrower certifying that (A) the conditions specified in Section 4.01(g) and certificates of qualification to transact business in Sections 4.02(a), (b) and (c) have been satisfied and (B) since March 31, 2020 there has not been any event or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxationcircumstance which, as applicable) of each state singly or in which such Loan Party is required to be so qualified and where failure to be so qualified the aggregate, has resulted in or could reasonably be expected to have result in a Material Adverse Effect;
(viixi) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each audited and unaudited consolidated balance sheet of the officers of such Loan Party authorized to execute Parent Borrower and deliver its Subsidiaries, and the Loan Documents to which such Loan Party is a party, in the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) [intentionally omitted];
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity income and cash flows of the Parent Borrower and its Subsidiaries, in each case prepared as of December 27, 2020, and
(xii) (A) the Parent Borrower’s Projections on a quarterly basis for the fiscal years ended December 31, 2016, December 31, 2017 first year after the Closing Date and December 31, 2018 on an annual basis thereafter and (bB) GAAP unaudited consolidated balance sheets the Parent Borrower’s business plan. provided, however, that each of the requirements set forth in clause (iv) or (v) above (except for the delivery of the Security Agreement and related statements to the extent that a Lien on such Collateral may be perfected (x) by the filing of income, changes in equity a financing statement under the UCC or customary “short form” intellectual property filings with the United States Patent and cash flows Trademark Office or the United States Copyright Office or (y) the delivery of stock certificates of each Domestic Subsidiary of the Parent for each subsequent fiscal quarter ending Borrower that is a Material Subsidiary) shall not constitute conditions precedent to the Initial Credit Extension on the Closing Date after December 31the Parent Borrower’s use of commercially reasonable efforts to provide such items on or prior to the Closing Date if the Parent Borrower agrees to deliver, 2018 or cause to be delivered, such documents and at least 45 instruments, or take or cause to be taken such other actions as may be required to perfect such security interests within 90 days (or, in the case of clause (v), 120 days) after the Closing Date (subject to extensions approved by the Administrative Agent in its reasonable discretion).
(d) The Borrowers shall have paid, on or prior to the Closing Date; provided that , (i) all fees and expenses required to be paid on the Parent’s public filing Closing Date pursuant to Section 2.09 hereof and (ii) all other fees and expenses (including the Attorney Costs of any Xxxxxx, Xxxxx & Xxxxxxx LLP) required financial statements with the SEC to be paid pursuant to Section 10.04(a) for which invoices shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) have been presented to the extent invoiced Parent Borrower at least one (1) 1 Business Day prior to the Closing Date, evidence that all accrued costs, fees .
(e) All Indebtedness of the Parent Borrower and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed its Subsidiaries under the Commitment Letter) Existing Credit Agreement shall have been repaid in full, all commitments in respect thereof shall have been terminated and other compensation due all guarantees therefor and payable to security therefor shall be released (or substantially concurrently with the Administrative Agent, the Lead Arranger and the Lenders effectiveness of this Agreement on the Closing Date shall be repaid, terminated and released), and the Administrative Agent shall have been paid; andreceived pay-off letters in form and substance reasonably satisfactory to it from the administrative agent under the Existing Credit Agreement evidencing such repayment, termination and release.
(xvf) all necessary The Borrowers shall have provided to the Administrative Agent (i) the documentation and other information in connection with that is required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each case with respect to be delivered by the Loan Parties not later than five (5) Business Days prior to the Closing Date to the extent such information is reasonably requested not later than ten (10) by the Administrative Agent or any Lender at least 10 Business Days prior to the Closing Date; and
(b) (i) there shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of extent applicable, a Beneficial Ownership Certification with respect to any Borrower that qualifies as a “legal entity customer” under the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first Beneficial Ownership Regulation to the Lenders’ Tranche A-1 Commitments and second to extent requested by the Lenders’ Tranche A-2 CommitmentsAdministrative Agent or any Lender, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification the results of which are reasonably satisfactory to the definition Administrative Agent and any such Lender.
(g) After giving effect to the Transactions to be consummated on the Closing Date and the Initial Credit Extension, Excess Availability shall be not less than $175,000,000.
(h) The Borrowers shall have provided to Capital One all applications and other information and documents required to obtain a backstop Letter of “Company Material Adverse Effect” (Credit with respect to letters of credit issued by Xxxxx Fargo Bank, National Association, under the Existing Credit Agreement, and Capital One, as L/C Issuer, shall have issued such term is defined in Letter of Credit. Without limiting the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request generality of the Company or any affiliate thereof provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that would but for such request constitute a “Company Material Adverse Effect”, has signed this Agreement shall in each case be deemed to have consented to, approved or accepted or to be materially adverse 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 Lenders);proposed Closing Date specifying its objection thereto. The Administrative Agent shall promptly notify the Parent Borrower and the Lenders of the Closing Date, and such notice shall be conclusive and binding.
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Vista Outdoor Inc.)
Conditions to Closing Date. The effectiveness Unless otherwise agreed to by the Administrative Agent in writing, the obligation of each Lender to execute and enter into this Agreement on the Closing Date is subject to the satisfaction or waiver of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, as applicable, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent shall have received and each of the followingLenders:
(i) executed counterparts of this Agreement executed (other than by Main Street), sufficient in number for distribution to the Administrative Agent, each of Lender and the parties heretoBorrowers;
(ii) if requested by any Lender pursuant to Section 2.12.(a) at least three (3) days prior to duly executed copy of the date hereof, a Note executed by the Borrowers, payable to such Lender and complying with the terms of Section 2.12.(a)Subordinated Credit Agreement;
(iii) copies certified by a fully executed copy Responsible Officer of the Merger AgreementBorrowers of each of the Related Documents (other than the Certificate of Merger), duly executed by the parties thereto, together with all agreements, instruments and other documents delivered in connection therewith as the Administrative Agent shall request;
(iv) an opinion (i) copies of Hogan Lovells LLP, counsel the (A) pro forma consolidated financial statements relating to the Company Borrowers, its Subsidiaries and any other entities or businesses that are the subject of the Acquisition and (B) financial statements of Main Street and its Subsidiaries for the Fiscal Year ended December 31, 2005, and any other financial statements as of the most recently ended Fiscal Quarter, and (ii) the forecasts, prepared by the senior management of the Borrowers, of consolidated balance sheets and statements of income or operations and cash flows of the Borrowers and the Designated Guarantors for each Fiscal Year from 2006 through and including 2011; and
(v) a completed environmental questionnaire with respect to each Additional Restaurant.
(b) Evidence, showing to the reasonable satisfaction of the Administrative Agent and the Lenders that on a Pro Forma Basis after giving effect to the completion of the Acquisition, the Merger, the Equity Investment, the Transaction and the making of the Loans on the Funding Date that,
(i) the Consolidated Senior Debt of the Borrowers and the Designated Guarantors as at the Funding Date to the Consolidated EBITDA of the Borrowers and the Designated Guarantors determined on a Pro Forma Basis for the period of twelve (12) consecutive months ended March 31, 2006, is not greater than 3.80:1.00; and
(ii) the Consolidated Lease Adjusted Leverage Ratio of the Borrowers and the Designated Guarantors as determined on a Pro Forma Basis for the period of twelve (12) consecutive months ended March 31, 2006, is not greater than 5.90:1.00.
(c) Each of the Loan Documents (other Loan Parties, addressed than this Agreement) and the Subordinated Debts Documents (other than the Subordinated Credit Agreement) shall be in form and substance satisfactory to the Administrative Agent and the Lenders and Lenders, as applicable, subject only to execution by the parties thereto on the Funding Date.
(d) The Administrative Services Agreement shall be in form and substance reasonably satisfactory to the Administrative Agent;
(v) Agent and the certificate or articles of incorporation or formationLenders, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a recent date subject only to execution by the Secretary of State of the state of formation of such Loan Party;
(vi) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, in the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) [intentionally omitted];
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and at least 45 days prior to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) to the extent invoiced at least one (1) Business Day prior to the Closing Date, evidence that all accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable to the Administrative Agent, the Lead Arranger and the Lenders parties thereto on the Closing Date shall have been paid; and
(xv) all necessary information in connection with the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each case to be delivered by the Loan Parties not later than five (5) Business Days prior to the Closing Date to the extent such information is requested not later than ten (10) Business Days prior to the Closing Funding Date; and
(b) (i) there shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);.
Appears in 1 contract
Conditions to Closing Date. The effectiveness obligation of this Agreement each Lender to make a Borrowing hereunder on the Closing Date is subject to the satisfaction or waiver of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The Administrative Agent shall have received each Agent’s receipt of the following:
, each of which shall be originals or facsimiles (ifollowed promptly by originals) counterparts of this Agreement unless otherwise specified, each properly executed by each a Responsible Officer of the parties hereto;
(ii) if requested by any Lender pursuant to Section 2.12.(a) at least three (3) days prior to the date hereof, a Note executed by the Borrowers, payable to such Lender and complying with the terms of Section 2.12.(a);
(iii) a fully executed copy of the Merger Agreement;
(iv) an opinion of Hogan Lovells LLP, counsel to the Company and the other signing Loan Parties, addressed to the Administrative Agent and the Lenders and Party each in form and substance reasonably satisfactory to the Administrative AgentAgent and its legal counsel:
(i) a Committed Loan Notice in accordance with the requirements hereof;
(ii) executed counterparts of this Agreement and the Pre-Funding Security Agreement;
(iii) a Note executed by the Borrower in favor of each Lender that has requested a Note at least three (3) Business Days in advance of the Closing Date;
(iv) a UCC-1 financing statement naming the Borrower as debtor and the Administrative Agent as secured party in appropriate form for filing with the Secretary of State of Delaware and containing a description of the Pre-Funding Security Account and the Pre-Funding Security Account Funds as collateral;
(v) such certificates of good standing from the certificate or articles applicable secretary of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a recent date by the Secretary of State state of the state of formation organization of such Loan Party;
(vi) a certificate Holdings, Sub Holdco and the Borrower, certificates of good standing (resolutions or certificate other action, incumbency certificates and/or other certificates of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation Responsible Officers of each such Loan Party of Holdings, Sub Holdco and certificates of qualification to transact business or other comparable certificates issued the Borrower as of a recent date by each Secretary of State (the Administrative Agent may reasonably require evidencing the identity, authority and any state department of taxation, as applicable) capacity of each state in which such Loan Party is required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party Responsible Officer thereof authorized to execute act as a Responsible Officer in connection with this Agreement and deliver the other Loan Documents to which such Loan Party Person is a partyparty or is to be a party on the Closing Date; and
(vi) an opinion from Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, New York counsel to the Loan Parties, substantially in the form of Exhibit G-1 to the Original Credit Agreement, an opinion from Xxxxxx & Xxxxxx LLP, special counsel to the Loan Parties, substantially in the form of Exhibit G-2 to the Original Credit Agreement, and an opinion from Young Xxxxxxx Stargatt & Xxxxxx, LLP, Delaware counsel to the Loan Parties, in form reasonably acceptable to the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;Administrative Agent.
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) [intentionally omitted];
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets The Arrangers shall have received (i) the Annual Financial Statements and related statements of income, changes in equity and cash flows of (ii) the Parent for each subsequent fiscal quarter ending after December 31, 2018 and Quarterly Financial Statements.
(c) The Arrangers shall have received the Pro Forma Financial Statements.
(d) The Arrangers shall have received at least 45 five (5) days prior to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) to the extent invoiced Date all documentation and other information reasonably requested in writing by them at least one (1) Business Day prior to the Closing Date, evidence that all accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable to the Administrative Agent, the Lead Arranger and the Lenders on the Closing Date shall have been paid; and
(xv) all necessary information in connection with the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each case to be delivered by the Loan Parties not later than five (5) Business Days prior to the Closing Date to the extent such information is requested not later than ten (10) Business Days prior to the Closing Date; andDate in order to allow the Arrangers and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(be) The Administrative Agent shall have received the Initial Interest Gross-Up Amount from the Borrower for deposit into the Pre-Funding Security Account.
(if) there The Specified Representations shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger be true and correct in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned all material respects (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”)or, if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded qualified by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company materiality,” “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) on and as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof Closing Date Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that would but for such request constitute a “Company Material Adverse Effect”, has signed this Agreement shall in each case be deemed to have consented to, approved or accepted or to be materially adverse 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 Lenders);proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions to Closing Date. The effectiveness obligations of this Agreement the Lenders to make Loans hereunder shall not become effective until the Closing Date which is subject scheduled to occur upon the satisfaction or waiver of the following conditions precedent (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurred):precedent:
(a) The Administrative Agent shall have received each Agent’s receipt of the following:
, each of which shall be originals or facsimiles (ifollowed promptly by originals) counterparts of this Agreement and unless otherwise specified, each properly executed by each an authorized officer of the parties hereto;
signing Loan Party, each dated the Closing Date (ii) if requested by any Lender pursuant to Section 2.12.(a) at least three (3) days prior to or, in the date hereofcase of certificates of governmental officials, a Note executed by recent date before the Borrowers, payable to such Lender Closing Date) and complying with the terms of Section 2.12.(a);
(iii) a fully executed copy of the Merger Agreement;
(iv) an opinion of Hogan Lovells LLP, counsel to the Company and the other Loan Parties, addressed to the Administrative Agent and the Lenders and each in form and substance reasonably satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty, each dated as of the Closing Date;
(ii) Notes executed by the Borrower in favor of each Lender requesting such Notes, each dated as of the Closing Date;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of officers of each Loan Party as the Administrative Agent may require to establish the identities of and verify the authority and capacity of each officer thereof authorized to act in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such evidence as the Administrative Agent may reasonably require to verify that each Loan Party and the General Partner is duly organized or formed, validly existing, in good standing in the jurisdiction of its organization;
(v) a certificate signed by an a Responsible Officer of the certificate Borrower certifying (A) that the representations and warranties contained in Article V are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or articles of incorporation or formation, articles of organization, certificate of limited partnership or other comparable organizational document (if anywarranties that are already qualified as to materiality in the text thereof) of each Loan Party certified on and as of a recent date by the Secretary such date, (B) no Default or Event of State of the state of formation Default has occurred and is continuing as of such Loan Party;
date, (viC) since December 31, 2012 there has occurred no event or condition that has had or could be reasonably expected to have, either individually or in the aggregate, a certificate of good standing Material Adverse Effect, (D) there is no litigation, investigation or certificate of similar meaning) with respect proceeding known to each Loan Party issued as of a recent date by and affecting the Secretary of State of Borrower or any Borrower Affiliate for which the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party Borrower is required to give notice pursuant to Section 6.03(b) (or, if there is any such litigation, investigation or proceeding, then a notice containing the information required by Section 6.03(b) shall be so qualified given concurrently with the delivery of the certificate given pursuant to this clause (v)), and where failure to be so qualified (E) no action, suit, investigation or proceeding is pending or threatened in any court or before any arbitrator or Governmental Authority by or against the Borrower or any Borrower Affiliate, or any of their respective properties, that could reasonably be expected to have a Material Adverse Effect;
(vi) receipt of audited financial statements of the MLP as of December 31, 2012, unaudited financial statements of the MLP as of June 30, 2013, and such other financial information as the Administrative Agent may reasonably request;
(vii) a certificate of incumbency signed by the Secretary or Assistant Secretary opinions from (or other individual performing similar functionsi) of Xxxxxx & Xxxxxx LLP, counsel to each Loan Party with respect and the General Partner, and (ii) Xxxxxxxx Xxxx-Xxxxxx, counsel to each of the officers of such Loan Party authorized and the General Partner, in each case, addressed to execute the Administrative Agent and deliver each Lender, as to the matters concerning the Loan Parties and the Loan Documents to which such Loan Party is a party, in as the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of ContinuationAdministrative Agent may reasonably request;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) evidence of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance termination of the Loan Documents to which it is a party;Commitments as defined in Existing Credit Agreement and repayment or refinancing of all loans thereunder simultaneously with the Closing Date; and
(ix) [intentionally omitted];such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders reasonably may require.
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and at least 45 days prior to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) to the extent invoiced at least one (1) Business Day prior to the Closing Date, evidence that all accrued costs, Any fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable to the Administrative Agent, the Lead Arranger and the Lenders on at the Closing Date shall have been paid; and.
(xvc) all necessary information in connection The Borrower shall have paid Attorney Costs of the Administrative Agent to the extent invoiced prior to, or on, the Closing Date. Without limiting the generality of the provisions of Section 9.03, for purposes of determining compliance with the Patriot Actconditions specified in this Section 4.01, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification)each Lender that has signed this Agreement shall be deemed to have consented to, “know your customer” requirements, and other customary requirements, in each case approved or accepted or to be delivered 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 Loan Parties not later than five (5) Business Days Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date to specifying its objection thereto. The Administrative Agent shall notify the extent such information is requested not later than ten (10) Business Days prior to Borrower and the Lenders of the Closing Date; and
(b) (i) there , and such notice shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood conclusive and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);binding.
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Samples: 364 Day Revolving Credit Agreement (Sunoco Logistics Partners L.P.)
Conditions to Closing Date. The effectiveness obligations of this Agreement is subject each Lender to make any extension of credit hereunder on the satisfaction or waiver Closing Date shall not become effective until the date on which each of the following conditions precedent is satisfied (and upon the satisfaction or waiver of such conditions, the Closing Date shall be deemed to have occurredwaived in accordance with Section 9.02):
(a) The Administrative Agent shall have received from each of the following:
Loan Party either (i) counterparts a counterpart of this Agreement executed by each signed on behalf of the parties hereto;
such party or (ii) if requested by any Lender pursuant evidence satisfactory to Section 2.12.(athe Administrative Agent (which may include a facsimile or other electronic transmission) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent and the Arrangers shall have received at least three (3) Business Days prior to the Closing Date all documentation and other information about the Loan Parties as has been reasonably requested in writing at least ten (10) days prior to the date hereof, a Note executed Closing Date by the BorrowersAdministrative Agent or the Arrangers that they reasonably determine is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, payable to such Lender and complying with including the terms of Section 2.12.(a);USA PATRIOT Act.
(iiic) The Administrative Agent shall have received a fully executed copy certificate relating to the organization, existence and good standing of the Merger Agreement;
Company and each other Loan Party, the authorization of the Transactions and other legal matters relating to the Company and each other Loan Party, the Loan Documents or the Transactions (ivas applicable), substantially in the form attached hereto as (x) an opinion in the case of Hogan Lovells LLPthe Designated Borrower as of the Closing Date, counsel to Exhibit J-1, and (y) in the case of the Company and the other Loan PartiesParties (other than such Designated Borrower), Exhibit J-2.
(d) The Administrative Agent shall have received a customary favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Closing Date) of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Loan Parties, as to matters of New York law and English law, in each case in form and substance reasonably satisfactory to the Administrative Agent;.
(ve) The Administrative Agent and the certificate or articles of incorporation or formationArrangers shall have received (including, articles of organization, certificate of limited partnership or other comparable organizational document (if any) of each Loan Party certified as of a recent date requested by the Secretary Company, by way of State off-set against the proceeds of the state of formation of such Loan Party;
(viLoans) a certificate of good standing (or certificate of similar meaning) with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party all fees and certificates of qualification to transact business or other comparable certificates issued as of a recent date by each Secretary of State (and any state department of taxation, as applicable) of each state in which such Loan Party is reasonable out-of-pocket amounts required to be so qualified and where failure to be so qualified could reasonably be expected to have a Material Adverse Effect;
(vii) a certificate of incumbency signed by the Secretary paid on or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver the Loan Documents to which such Loan Party is a party, in the case of each Borrower, authorized to execute and deliver on behalf of such Borrower Notices of Borrowing, Notices of Conversion and Notices of Continuation;
(viii) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (A) the by-laws of such Loan Party, if a corporation, the operating agreement, if a limited liability company, the partnership agreement, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (B) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of the Loan Documents to which it is a party;
(ix) [intentionally omitted];
(x) [intentionally omitted];
(xi) a Solvency Certificate from the chief financial officer of the Parent;
(xii) [intentionally omitted];
(a) GAAP audited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for the fiscal years ended December 31, 2016, December 31, 2017 and December 31, 2018 and (b) GAAP unaudited consolidated balance sheets and related statements of income, changes in equity and cash flows of the Parent for each subsequent fiscal quarter ending after December 31, 2018 and at least 45 days prior to the Closing Date; provided that the Parent’s public filing of any required financial statements with the SEC shall constitute delivery of such financial statements for purposes of this Section 6.1.(I)(a)(xiii);
(xiv) , including, to the extent invoiced at least one three (1) Business Day prior to the Closing Date, evidence that all accrued costs, fees and expenses (including legal fees and expenses and the fees and expenses of any other advisors required to be reimbursed under the Commitment Letter) and other compensation due and payable to the Administrative Agent, the Lead Arranger and the Lenders on the Closing Date shall have been paid; and
(xv) all necessary information in connection with the Patriot Act, the Beneficial Ownership Regulation (including a Beneficial Ownership Certification), “know your customer” requirements, and other customary requirements, in each case to be delivered by the Loan Parties not later than five (53) Business Days prior to the Closing Date (except as otherwise agreed to by the extent such information is requested not later than ten Company), payment or reimbursement of all fees and reasonable out-of-pocket expenses (10including the reasonable and documented fees, charges and disbursements of counsel) Business Days required to be paid or reimbursed by any Loan Party on or prior to the Closing Date; and
(b) (i) there shall not have occurred on or after the Commitment Effective Date any amendments, modifications or waivers by PK Domestic LLC or any of its Affiliates of, or consents by PK Domestic LLC or any of its Affiliates under, the Merger Agreement that are materially adverse to the Lenders or the Lead Arranger in their respective capacities without the consent of the Lead Arranger, such consent not to be unreasonably withheld, delayed or conditioned (it being understood and agreed that (a) any (i) increase in the aggregate cash consideration to be paid under the Merger Agreement (the “Cash Merger Consideration”), if funded with equity shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger and shall not require the consent of the Lead Arranger to the extent funded by equity only and (ii) any decrease in the Cash Merger Consideration shall not be deemed to be materially adverse to the interests of the Lenders and the Lead Arranger if such decrease shall reduce dollar-for-dollar the Lenders’ Commitments (allocated first to the Lenders’ Tranche A-1 Commitments and second to the Lenders’ Tranche A-2 Commitments, in each case, ratably in accordance with each Lender’s Applicable Commitment Percentage) and (b) any (i) amendment or modification to the definition of “Company Material Adverse Effect” (as such term is defined in the Merger Agreement), (ii) consent or waiver given by the Company or any affiliate thereof as to any matter that would but for such consent constitute a “Company Material Adverse Effect”, or (iii) action or omission taken at the request of the Company or any affiliate thereof that would but for such request constitute a “Company Material Adverse Effect”, shall in each case be deemed to be materially adverse to the Lenders);.
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