Conditions to the Closing Date. The obligation of each Lender to make the Term Loan hereunder is subject to satisfaction or waiver in writing by the Lenders of the following conditions precedent: (a) The Administrative Agent’s receipt of the following, each properly executed by a Responsible Officer of the signing Loan Party, and each in form and substance satisfactory to the Administrative Agent and its legal counsel: (i) executed counterparts of this Agreement and the other Loan Documents by each Loan Party, Agent and Lender, as applicable; (ii) an original Note executed by Borrower in favor of each Lender that has requested in writing a Note; (iii) such certificates (including a certificate substantially in the form of Exhibit I) of resolutions or other corporate 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 on the Closing Date; (iv) an opinion by Xxxxxxxx Xxxx Xxxxxxxx Xxxxxx Xxxxxxxx & Xxxxx, P.C., counsel to the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent; (v) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) on the Closing Date before and after giving effect to the Transaction, from the chief financial officer of Parent in substantially the form of Exhibit J hereto; (vi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Collateral Agent with respect to the Loan Parties together with evidence that, upon satisfaction of the conditions precedent contained in any applicable payoff letters, all existing Liens (other than Permitted Liens) will be terminated and released and all actions required to terminate and release such Liens have been satisfactorily taken or will be capable of being satisfactorily undertaken substantially simultaneously with the closing of the Transaction; and (vii) (A) Organization Documents of each Loan Party and (B) good standing certificates or certificates of status, as applicable, as of a date reasonably proximate to the Closing Date, from (1) the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation, and (2) the jurisdictions where the failure of a Loan Party to be qualified and in good standing could reasonably be expected to have a Material Adverse Effect and, where available, bring down certificates, for each Loan Party. (b) As of the Closing Date, after giving effect to the Transaction, the Loan Parties will have no indebtedness other than the Facility and any Surviving Indebtedness specified on Schedule 7.03. All amounts due or outstanding in respect of the Exworks Facility and any other Indebtedness other than the Facility and any Surviving Indebtedness specified on Schedule 7.03 shall have been repaid in full, all commitments (if any) in respect thereof terminated, all guarantees (if any) thereof discharged and released and all security therefor (if any) released, together with all fees and other amounts owing thereon, or documentation in form and substance reasonably satisfactory to the Administrative Agent to effect such release upon such repayment and termination shall have been delivered to the Administrative Agent. (c) In order to create in favor of Collateral Agent, for the benefit of the Lenders, a valid, perfected first priority security interest in the personal property Collateral, Collateral Agent shall have received: (i) evidence satisfactory to Collateral Agent of the compliance by each Loan Party of their obligations under the Collateral Documents (including, without limitation, their obligations to authorize or execute, as the case may be, and deliver UCC financing statements, originals of securities, instruments and chattel paper, deposit account control agreements and any agreements governing securities accounts as provided therein); (ii) a completed Collateral Questionnaire dated the Closing Date and executed by a Responsible Officer of each Loan Party, together with all attachments contemplated thereby, including (A) the results of a recent search, by a Person satisfactory to Collateral Agent, of all effective UCC financing statements (or equivalent filings) made with respect to any personal or mixed property of any Loan Party in the jurisdictions specified in the Collateral Questionnaire, together with copies of all such filings disclosed by such search, and (B) UCC termination statements (or similar documents) duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements (or equivalent filings) disclosed in such search (other than any such financing statements in respect of Permitted Liens); (iii) opinions of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) with respect to the creation and perfection of the security interests in favor of Collateral Agent in such Collateral and such other matters governed by the laws of each jurisdiction in which any Loan Party or any personal property Collateral is located as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent; and (iv) evidence that each Loan Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including without limitation, (i) a landlord personal property collateral access agreement executed by the landlord of any leasehold property and by the applicable Loan Party and (ii) any intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 7.03(h)) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent. (d) The Administrative Agent shall have received the Mortgages (including all leasehold Mortgages) with respect to each Material Owned Property, together with all additional documentation required to be delivered pursuant to clause (g) of the definition of “Collateral and Guarantee Requirement”. (e) The Administrative Agent shall have received (i) the audited consolidated balance sheets and related statements of income (if any) and Shareholders’ Equity of Parent and its Subsidiaries and unaudited consolidating balance sheets and related statements of income (if any) for the Fiscal Year of Parent ended December 31, 2017, (ii) unaudited consolidated and consolidating balance sheets and related statements of income (if any) of Parent and its Subsidiaries for each subsequent fiscal quarter after December 31, 2017 ended at least forty-five (45) days before the Closing Date, (iii) unaudited consolidated and consolidating balance sheets and related statements of income (if any) of Parent and its Subsidiaries for each fiscal month ended at least thirty-one (31) days before the Closing Date, and (iv) forecasts prepared by management of Parent of consolidated and consolidating balance sheets and income statements of Parent and its Subsidiaries on a monthly basis for Fiscal Year 2018 and on a quarterly basis for Fiscal Year 2019 (“Projections”), in each case, in form and substance satisfactory to the Administrative Agent and prepared in accordance with GAAP as in effect at the time of such preparation. (f) The Administrative Agent and the Lenders shall have completed, to their satisfaction, all legal, tax, environmental, management and background checks, business and other due diligence with respect to the business, assets, liabilities, operations and condition (financial or otherwise) of the Loan Parties (which shall include a review of all Material Agreements with the Loan Parties’ customers and suppliers), in each case, in scope and determination satisfactory to the Administrative Agent in its sole discretion. The Administrative Agent shall have received a quality of earnings report from a Person who is not an Affiliate of the Borrower, in form and substance satisfactory to the Administrative Agent. (g) Payment by Borrower of all accrued costs, fees and expenses (including applicable Attorney Costs and the reasonable and documented out-of-pocket fees and expenses of any other advisors) and any other compensation due and payable to the Administrative Agent and Lenders on the Closing Date shall have been received. (h) The Administrative Agent shall have received reasonably satisfactory evidence of insurance required to be maintained pursuant to Section 6.07 and the Collateral Agent shall be named as an additional loss payee and additional insured, as applicable, thereunder. (i) Borrower shall have delivered to each Lender its duly executed Warrant Certificates. (j) Borrower shall have established the ECF Lockbox Account. (k) The Lenders shall have received on or prior to the Closing Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act and customary management background checks, in order to allow the Lenders to comply therewith, in each case, to the extent requested at least five (5) Business Days prior to the Closing Date. (l) The Administrative Agent shall have received a certificate signed by a Responsible Officer of Borrower certifying as to Sections 4.01(m), (n) and (o) in substantially the form of Exhibit I. (m) The representations and warranties of Borrower and each other Loan Party contained in Article V or any other Loan Document shall be true and correct in all material respects on and as of the Closing Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided further that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates. (n) No Default or Event of Default shall exist. (o) There is no action, suit, investigation or proceeding pending or, to the knowledge of Borrower, threatened in any court or before an arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Conditions to the Closing Date. The obligation of each of the Lenders to make the initial Advances to be made by them under this Agreement, the obligation of the Issuing Lender to issue the initial Letter of Credit, and the obligation of the Swing Line Lender to make the Term Loan hereunder is initial Swing Line Loan, each are subject to satisfaction or waiver in writing by the Lenders of the following conditions precedent:, each of which shall be satisfied prior to the making of such initial Advances, the issuance of such initial Letter of Credit and the making of the initial Swing Line Loan (unless all of the Lenders, in their sole and absolute discretion, shall agree otherwise):
(a) The Administrative Agent’s receipt Agent shall have received all of the following, each of which shall be originals unless otherwise specified, each properly executed by a Responsible Officer Official of each party thereto, each dated as of the signing Loan Party, Closing Date and each in form and substance satisfactory to the Administrative Agent and its legal counsel:counsel (unless otherwise specified or, in the case of the date of any of the following, unless the Administrative Agent otherwise agrees or directs):
(i) at least one executed counterparts counterpart of this Agreement Agreement, together with arrangements satisfactory to the Administrative Agent for additional executed counterparts, sufficient in number for distribution to the Lenders and the other Loan Documents by each Loan Party, Agent and Lender, as applicableBorrower;
(ii) an original Note Notes executed by Borrower in favor of each Lender Lender, each in a principal amount equal to that has requested in writing a NoteLender's Pro Rata Share of each of the Commitments;
(iii) the Swing Line Note;
(iv) with respect to Borrower and each Significant Subsidiary, such certificates (including a certificate substantially in the form of Exhibit I) of resolutions or other corporate action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party documentation as the Administrative Agent may reasonably require evidencing to establish the due organization, valid existence and good standing of Borrower and each such Subsidiary, its qualification to engage in business in each material jurisdiction in which it is engaged in business or required to be so qualified, its authority to execute, deliver and perform any Loan Documents to which it is a Party, the identity, authority and capacity of each Responsible Officer Official thereof authorized to act on its behalf, including certified copies of articles of incorporation or other similar organizational documents and amendments thereto, bylaws, partnership or operating agreements, as applicable, and amendments thereto, certificates of good standing and/or qualification to engage in business, tax clearance certificates, certificates of corporate resolutions, incumbency certificates, Certificates of Responsible Officials, and the like;
(v) the Opinions of Counsel;
(vi) the Subsidiary Guaranty executed by each of the other Significant Subsidiaries;
(vii) [Reserved]
(viii) a Responsible Certificate signed by a Senior Officer of Borrower stating that (a) as of the date thereof, the representations and warranties of Borrower contained in connection with this Agreement Article 4 are true and correct, (b) Borrower and the other Parties are in compliance with all the terms and provisions of the Loan Documents and no Default or Event of Default has occurred and remains continuing, and (c) that, giving pro forma effect to which such Loan Party is a party or is the transactions contemplated to be a party occur on the Closing Date, Borrower is in compliance with the In-Balance covenant set forth in Section 6.18 hereof, and attaching calculations demonstrating such compliance;
(ivix) an opinion by Xxxxxxxx Xxxx Xxxxxxxx Xxxxxx Xxxxxxxx & Xxxxx, P.C., counsel evidence acceptable to the Administrative Agent that the credit facilities contemplated by this Agreement have received ratings of not less than B+ (stable outlook) from Standard & Poor's and B1 (stable outlook) from Xxxxx'x;
(x) the Security Agreement executed by Borrower and each of the Significant Subsidiaries, together with each of the instruments listed in Schedule I to the Security Agreement, executed by the parties indicated therein;
(xi) such financing statements on Form UCC-1 executed by Borrower and each Significant Subsidiary with respect to the Security Agreement as the Administrative Agent may request;
(xii) the Pledge Agreement (General) executed by Borrower and each of its relevant Restricted Subsidiaries together with all certificates constituting the corresponding Pledged Collateral (General), accompanied by appropriate stock powers or assignments endorsed in blank;
(xiii) Amendments to the pledge agreements executed pursuant to the Existing Loan PartiesAgreement in respect of those of the Restricted Subsidiaries which are Nevada or Mississippi gaming licensees, or registered holding companies therefor, in form and substance reasonably satisfactory acceptable to the Administrative Agent;
(v) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) on the Closing Date before and after giving effect to the Transaction, from the chief financial officer of Parent in substantially the form of Exhibit J hereto;
(vi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Collateral Agent with respect to the Loan Parties together with evidence that, upon satisfaction of the conditions precedent contained in any applicable payoff letters, all existing Liens (other than Permitted Liens) will be terminated and released and all actions required to terminate and release such Liens have been satisfactorily taken or will be capable of being satisfactorily undertaken substantially simultaneously with the closing of the Transaction; and
(vii) (A) Organization Documents of each Loan Party and (B) good standing certificates or certificates of status, as applicable, as of a date reasonably proximate to the Closing Date, from (1xiv) the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation, and Pledge Agreements (2Gaming Regulated) the jurisdictions where the failure of a Loan Party to be qualified and in good standing could reasonably be expected to have a Material Adverse Effect and, where available, bring down certificates, for each Loan Party.
(b) As of the Closing Date, after giving effect to the Transaction, the Loan Parties will have no indebtedness other than the Facility and any Surviving Indebtedness specified on Schedule 7.03. All amounts due or outstanding in respect of the Exworks Facility and any other Indebtedness other than the Facility and any Surviving Indebtedness specified on Schedule 7.03 shall have been repaid in full, all commitments (if any) in respect thereof terminated, all guarantees (if any) thereof discharged and released and all security therefor (if any) released, together with all fees and other amounts owing thereon, or documentation in form and substance reasonably satisfactory acceptable to the Administrative Agent to effect such release upon such repayment executed by Borrower and termination shall have been delivered to each of its relevant Restricted Subsidiaries together with all certificates constituting the Administrative Agent.
corresponding Pledged Collateral (c) In order to create Gaming Regulated), accompanied by appropriate stock powers or assignments endorsed in favor of Collateral Agent, for the benefit of the Lenders, a valid, perfected first priority security interest in the personal property Collateral, Collateral Agent shall have received:
(i) evidence satisfactory to Collateral Agent of the compliance by each Loan Party of their obligations under the Collateral Documents (including, without limitation, their obligations to authorize or execute, as the case may be, and deliver UCC financing statements, originals of securities, instruments and chattel paper, deposit account control agreements and any agreements governing securities accounts as provided therein)blank;
(iixv) a completed Collateral Questionnaire dated the Closing Date and Preferred Ship Mortgages executed by a Responsible Officer of each Loan Party, together with all attachments contemplated thereby, including the appropriate Significant Subsidiaries;
(Axvi) the results of a recent search, by a Person satisfactory to Trademark Collateral Agent, of all effective UCC financing statements (or equivalent filings) made with respect to any personal or mixed property of any Loan Party in the jurisdictions specified in the Collateral Questionnaire, together with copies of all such filings disclosed by such search, and (B) UCC termination statements (or similar documents) duly Assignment executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements Borrower and the Significant Subsidiaries;
(or equivalent filingsxvii) disclosed in such search (the Belterra Mortgage and other than any such financing statements Mortgages in respect of Permitted Liens)all other Real Property Collateral other than the Lake Xxxxxxx Project and portions of the Casino Magic Biloxi property not now subject to an Existing Mortgage;
(iiixviii) opinions Deeds of counsel Trust or Mortgages in respect of any Permitted Sale Assets which are not "Gaming Properties" other than the Xxxx Haus;
(which counsel shall be reasonably satisfactory to Collateral Agentxix) with respect Amendments to the creation and perfection of the security interests in favor of Collateral Agent in such Collateral and such other matters governed Existing Mortgages executed by the laws of each jurisdiction in which any Loan Party or any personal property Collateral is located as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent; andappropriate Significant Subsidiaries;
(ivxx) evidence that each Loan Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including without limitation, (i) a landlord personal property collateral access an agreement executed by the landlord of any leasehold property Construction Consultant and by the applicable Loan Party and (ii) any intercompany notes evidencing Indebtedness permitted to be incurred Borrower pursuant to Section 7.03(h)) which the Borrower agrees to pay the fees and made or caused expenses of the Construction Consultant to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent.monitor the construction of the Lake Xxxxxxx Project;
(dxxi) The Administrative Agent shall have received the Mortgages (including all leasehold Mortgages) with respect to each Material Owned Property, together with all additional documentation required to be delivered pursuant to clause (g) of the definition of “Collateral and Guarantee Requirement”.
(e) The Administrative Agent shall have received (i) the audited consolidated balance sheets and related statements of income (if any) and Shareholders’ Equity of Parent and its Subsidiaries and unaudited consolidating balance sheets and related statements of income (if any) for the Fiscal Year of Parent ended December 31, 2017, (ii) unaudited consolidated and consolidating balance sheets and related statements of income (if any) of Parent and its Subsidiaries for each subsequent fiscal quarter after December 31, 2017 ended at least forty-five (45) days before the Closing Date, (iii) unaudited consolidated and consolidating balance sheets and related statements of income (if any) of Parent and its Subsidiaries for each fiscal month ended at least thirty-one (31) days before the Closing Date, and (iv) forecasts prepared written appraisals by management of Parent of consolidated and consolidating balance sheets and income statements of Parent and its Subsidiaries on a monthly basis for Fiscal Year 2018 and on a quarterly basis for Fiscal Year 2019 (“Projections”), in each case, in form and substance satisfactory qualified independent appraiser acceptable to the Administrative Agent and prepared complying in accordance all respects with GAAP as in effect at the time FIRREA of such preparation.
(f) The Administrative Agent and the Lenders shall have completed, to their satisfaction, all legal, tax, environmental, management and background checks, business and other due diligence with respect to the business, assets, liabilities, operations and condition (financial or otherwise) each of the Loan Parties Gaming Properties (which shall include a review of all Material Agreements with other than the Loan Parties’ customers Lake Xxxxxxx Project) that are in form and suppliers), in each case, in scope and determination satisfactory substance acceptable to the Administrative Agent in its sole and absolute discretion. The Administrative Agent shall have received a quality of earnings report ;
(xxii) assurances from a Person who the Title Company that it is not an Affiliate prepared to issue one or more ALTA extended coverage lenders policies insuring the Liens of the BorrowerMortgages (other than the approximately 296 acres of undeveloped land in the Reno, Nevada, area) in form and substance satisfactory an amount not less than the aggregate fair market value of the Real Property Collateral (provided, however, that the aggregate title insurance amount shall not exceed the Commitments), subject to such exceptions as are reasonably acceptable to the Administrative Agent.
(g) Payment by Borrower of all accrued costs, fees with such title policy endorsements as the Administrative Agent may reasonably require and expenses (including applicable Attorney Costs and with such assurances as the reasonable and documented outAdministrative Agent may reasonably require from title re-of-pocket fees and expenses of any other advisors) and any other compensation due and payable insurers acceptable to the Administrative Agent and Lenders on the Closing Date shall have been received.
(h) The Administrative Agent shall have received reasonably satisfactory evidence of insurance required to be maintained pursuant to Section 6.07 and the Collateral Agent shall be named as an additional loss payee and additional insured, as applicable, thereunder.
(i) Borrower shall have delivered to each Lender its duly executed Warrant Certificates.
(j) Borrower shall have established the ECF Lockbox Account.
(k) The Lenders shall have received on or prior to the Closing Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act and customary management background checks, in order to allow the Lenders to comply therewith, in each case, to the extent requested at least five (5) Business Days prior to the Closing Date.
(l) The Administrative Agent shall have received a certificate signed by a Responsible Officer of Borrower certifying as to Sections 4.01(m), (n) and (o) in substantially the form of Exhibit I.
(m) The representations and warranties of Borrower and each other Loan Party contained in Article V or any other Loan Document shall be true and correct in all material respects on and as of the Closing Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided further that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(n) No Default or Event of Default shall exist.
(o) There is no action, suit, investigation or proceeding pending or, to the knowledge of Borrower, threatened in any court or before an arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect.Agent;
Appears in 1 contract
Conditions to the Closing Date. The obligation of each Lender to make the Term Loan hereunder Loans on the Closing Date is subject to the satisfaction (or waiver in writing by the Lenders Administrative Agent) of the following conditions precedent, and only the following conditions precedent, on the Closing Date:
(a) The Administrative Agent’s receipt Borrowing of such Loans shall occur on or before the followingEllie Mae Acquisition Date, each properly executed by a Responsible Officer which shall be on or before the earlier to occur of the signing Loan Party, and each in form and substance satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts the termination or expiration of this the Ellie Mae Acquisition Agreement in accordance with its terms, and the other Loan Documents by each Loan Party, Agent and Lender, as applicable;
(ii) an original Note executed by Borrower in favor of each Lender that has requested in writing a Note;
the “Outside Date” (iii) such certificates (including a certificate substantially as defined in the form of Exhibit IEllie Mae Acquisition Agreement as in effect on August 6, 2020) of resolutions or other corporate actionas such date may be extended in accordance with the Ellie Mae Acquisition Agreement as in effect on August 6, 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 on the Closing Date;
2020 (iv) an opinion by Xxxxxxxx Xxxx Xxxxxxxx Xxxxxx Xxxxxxxx & Xxxxx, P.C., counsel to the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent;
(v) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) on the Closing Date before and after giving effect to the Transaction, from the chief financial officer of Parent in substantially the form of Exhibit J hereto;
(vi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Collateral Agent with respect to the Loan Parties together with evidence that, upon satisfaction of the conditions precedent contained but in any applicable payoff lettersevent not later than August 6, all existing Liens (other than Permitted Liens) will be terminated and released and all actions required to terminate and release such Liens have been satisfactorily taken or will be capable of being satisfactorily undertaken substantially simultaneously with the closing of the Transaction; and
(vii) (A) Organization Documents of each Loan Party and (B) good standing certificates or certificates of status, as applicable, as of a date reasonably proximate to the Closing Date, from (1) the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation, and (2) the jurisdictions where the failure of a Loan Party to be qualified and in good standing could reasonably be expected to have a Material Adverse Effect and, where available, bring down certificates, for each Loan Party.
(b) As of the Closing Date, after giving effect to the Transaction, the Loan Parties will have no indebtedness other than the Facility and any Surviving Indebtedness specified on Schedule 7.03. All amounts due or outstanding in respect of the Exworks Facility and any other Indebtedness other than the Facility and any Surviving Indebtedness specified on Schedule 7.03 shall have been repaid in full, all commitments (if any) in respect thereof terminated, all guarantees (if any) thereof discharged and released and all security therefor (if any) released, together with all fees and other amounts owing thereon, or documentation in form and substance reasonably satisfactory to the Administrative Agent to effect such release upon such repayment and termination shall have been delivered to the Administrative Agent.
(c) In order to create in favor of Collateral Agent, for the benefit of the Lenders, a valid, perfected first priority security interest in the personal property Collateral, Collateral Agent shall have received:
(i) evidence satisfactory to Collateral Agent of the compliance by each Loan Party of their obligations under the Collateral Documents (including, without limitation, their obligations to authorize or execute, as the case may be, and deliver UCC financing statements, originals of securities, instruments and chattel paper, deposit account control agreements and any agreements governing securities accounts as provided therein2021);
(ii) a completed Collateral Questionnaire dated the Closing Date and executed by a Responsible Officer of each Loan Party, together with all attachments contemplated thereby, including (A) the results of a recent search, by a Person satisfactory to Collateral Agent, of all effective UCC financing statements (or equivalent filings) made with respect to any personal or mixed property of any Loan Party in the jurisdictions specified in the Collateral Questionnaire, together with copies of all such filings disclosed by such search, and (B) UCC termination statements (or similar documents) duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements (or equivalent filings) disclosed in such search (other than any such financing statements in respect of Permitted Liens);
(iii) opinions of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) with respect to the creation and perfection of the security interests in favor of Collateral Agent in such Collateral and such other matters governed by the laws of each jurisdiction in which any Loan Party or any personal property Collateral is located as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent; and
(iv) evidence that each Loan Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including without limitation, (i) a landlord personal property collateral access agreement executed by the landlord of any leasehold property and by the applicable Loan Party and (ii) any intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 7.03(h)) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent.
(d) The Administrative Agent shall have received the Mortgages (including all leasehold Mortgages) with respect to each Material Owned Property, together with all additional documentation required to be delivered pursuant to clause (g) of the definition of “Collateral and Guarantee Requirement”.
(e) The Administrative Agent shall have received (i) the audited consolidated balance sheets and related statements of income (if any) and Shareholders’ Equity of Parent and its Subsidiaries and unaudited consolidating balance sheets and related statements of income (if any) for the Fiscal Year of Parent ended December 31, 2017, (ii) unaudited consolidated and consolidating balance sheets and related statements of income (if any) of Parent and its Subsidiaries for each subsequent fiscal quarter after December 31, 2017 ended at least forty-five (45) days before the Closing Date, (iii) unaudited consolidated and consolidating balance sheets and related statements of income (if any) of Parent and its Subsidiaries for each fiscal month ended at least thirty-one (31) days before the Closing Date, and (iv) forecasts prepared by management of Parent of consolidated and consolidating balance sheets and income statements of Parent and its Subsidiaries on a monthly basis for Fiscal Year 2018 and on a quarterly basis for Fiscal Year 2019 (“Projections”), in each case, in form and substance satisfactory to the Administrative Agent and prepared in accordance with GAAP as in effect at the time of such preparation.
(f) The Administrative Agent and the Lenders shall have completed, to their satisfaction, all legal, tax, environmental, management and background checks, business and other due diligence with respect to the business, assets, liabilities, operations and condition (financial or otherwise) of the Loan Parties (which shall include a review of all Material Agreements with the Loan Parties’ customers and suppliers), in each case, in scope and determination satisfactory to the Administrative Agent in its sole discretion. The Administrative Agent shall have received a quality of earnings report from a Person who is not an Affiliate of the Borrower, in form and substance satisfactory to the Administrative Agent.
(g) Payment by Borrower of all accrued costs, fees and expenses (including applicable Attorney Costs and the reasonable and documented out-of-pocket fees and expenses of any other advisors) and any other compensation due and payable to the Administrative Agent and Lenders on the Closing Date shall have been received.
(h) The Administrative Agent shall have received reasonably satisfactory evidence of insurance required to be maintained pursuant to Section 6.07 and the Collateral Agent shall be named as an additional loss payee and additional insured, as applicable, thereunder.
(i) Borrower shall have delivered to each Lender its duly executed Warrant Certificates.
(j) Borrower shall have established the ECF Lockbox Account.
(k) The Lenders shall have received on or prior to the Closing Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act and customary management background checks, in order to allow the Lenders to comply therewith, in each case, to the extent requested at least five (5) Business Days prior to the Closing Date.
(lb) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the chief financial officer of the Borrower certifying as to Sections 4.01(m)the solvency of the Borrower and its Subsidiaries, (n) and (o) on a consolidated basis, in substantially the form of Exhibit I.F;
(mc) The conditions set forth in Article VII of the Ellie Mae Acquisition Agreement (other than those conditions that by their nature are to be satisfied at the “Closing” (as defined in the Ellie Mae Acquisition Agreement)) shall be satisfied substantially in accordance with the terms and conditions of the Ellie Mae Acquisition Agreement without giving effect to any waiver, modification or consent thereunder that is materially adverse to the Lenders or the Initial Arranger (as reasonably determined by the Initial Arranger) unless approved by the Initial Arranger (which approval shall not be unreasonably withheld, conditioned or delayed);
(d) The representations and warranties of the Borrower set forth in Sections 4.1(i), 4.1(ii) (but only with respect to the Borrower’s power and each other Loan Party contained in Article V or any other Loan Document authority to execute, deliver and perform the Credit Documents), 4.2, 4.3 (but only with respect to clause (i) therein), 4.7, 4.11, 4.12 (but only with respect to the Borrower’s use of proceeds) and 4.13 shall be true and correct in all material respects on (except that any representation and warranty qualified as of the Closing Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they materiality or Material Adverse Effect shall be true and correct in all material respects as respects);
(e) No Event of such earlier date; provided further that Default under Section 8.1(a), 8.1(f) or 8.1(g), nor any representation and warranty that is qualified as to “materiality”, “Material Adverse Effectevent of default” or similar language condition under the Bridge Facility, the Revolving Credit Agreement (unless terminated on or prior to the Closing Date), or any other Indebtedness in excess of the Threshold Amount in the aggregate (but only insofar as such “event of default” or similar condition relates to bankruptcy or insolvency, or the nonpayment of principal, interest or fees), shall have occurred and be true continuing on such date, both immediately before and correct (immediately after giving effect to any qualification therein) in all respects the Loans to be made on such respective dates.date;
(nf) No Default or Event The Administrative Agent shall have received a Notice of Default Borrowing in accordance with Section 2.2(b) and, if any LIBOR Loans are to be borrowed on the Closing Date and such date is prior to the third Business Day after the Effective Date, the Administrative Agent shall exist.have received, three Business Days prior to such date, a customary pre-funding LIBOR indemnity letter from the Borrower;
(og) There is no action, suit, investigation or proceeding pending or, The aggregate principal of such Loans shall not exceed the aggregate Commitments at such time (determined without giving effect to such Loans);
(h) All fees and (to the knowledge extent invoiced at least two Business Days prior to the Closing Date) expenses due to the Initial Arranger, the Administrative Agent and the Lenders required to be paid on the Closing Date (including the fees and expenses of Borrower, threatened in any court or before an arbitrator or governmental authority that could reasonably be expected to counsel for the Initial Arranger and the Administrative Agent) will have a Material Adverse Effectbeen paid; and
(i) The Effective Date shall have occurred.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Intercontinental Exchange, Inc.)
Conditions to the Closing Date. The obligation of each Lender to make the Term Loan Loans hereunder is subject to satisfaction or waiver in writing by the Lenders of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each properly executed by a Responsible Officer of the signing Loan Party, if applicable, and each in form and substance reasonably satisfactory to the Administrative Agent Required Lenders and its legal counsel:
(i) executed counterparts of this Agreement and the other Loan Documents by each Loan Party, Agent and Lender, as applicable;
(ii) an original Note executed by the Borrower in favor of each Lender that has requested in writing a Note;
(iii) such certificates (including a certificate substantially in the form of Exhibit I) of resolutions or other corporate 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 on the Closing Date;
(iv) an opinion by of Xxxxxxxx Xxxx Xxxxxxxx Xxxxxx Xxxxxxxx & Xxxxx, P.C.LLP, counsel to the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent;
(v) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) on the Closing Date before and after giving effect to the TransactionTransaction and the other transactions contemplated hereby and thereby, from the chief financial officer of Parent the Borrower in substantially the form of Exhibit J hereto;
(vi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Collateral Agent with respect to the Loan Parties together with evidence that, upon satisfaction of the conditions precedent contained in any applicable payoff letters, all existing Liens (other than Permitted LiensLiens permitted under Section 7.01) will be terminated and released and all actions required to terminate and release such Liens have been satisfactorily taken or will be capable of being satisfactorily undertaken substantially simultaneously with the closing of the Transaction; and
(vii) (A) Organization Documents of each Loan Party and (B) good standing certificates or certificates of status, as applicable, as of a date reasonably proximate to the Closing Date, from (1) the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation, formation and (2) the jurisdictions where the failure of a Loan Party to be qualified and in good standing could reasonably be expected to have a Material Adverse Effect Effect, and, where available, bring down certificates, for each Loan Party.
(b) As of the Closing Date, after giving effect to the Transaction, the Loan Parties Borrower and each of its Subsidiaries will have no indebtedness other than the Facility Facility, the Existing Letters of Credit, and any Surviving Indebtedness specified on Schedule 7.037.03(b). All amounts due or outstanding in respect of the Exworks Facility and any other Indebtedness other than the Facility Facility, the Existing Letters of Credit and any Surviving Indebtedness specified on Schedule 7.03 7.03(b) shall have been repaid in full, all commitments (if any) in respect thereof terminated, all guarantees (if any) thereof discharged and released and all security therefor (if any) released, together with all fees and other amounts owing thereon, or documentation in form and substance reasonably satisfactory to the Administrative Agent to effect such release upon such repayment and termination shall have been delivered to the Administrative Agent.
(c) In order to create in favor of Collateral Agent, for the benefit of the Lenders, a valid, perfected first priority security interest in the personal property Collateral, Collateral Agent shall have received:
(i) evidence satisfactory to Collateral Agent of the compliance by each Loan Party of their obligations under the Collateral Documents (including, without limitation, their obligations to authorize or execute, as the case may be, and deliver UCC financing statements, originals of securities, instruments and chattel paper, deposit account control agreements and any agreements governing securities accounts as provided therein);
(ii) a completed Collateral Questionnaire dated the Closing Date and executed by a Responsible Officer of each Loan Party, together with all attachments contemplated thereby, including (A) the results of a recent search, by a Person satisfactory to Collateral Agent, of all effective UCC financing statements (or equivalent filings) made with respect to any personal or mixed property of any Loan Party in the jurisdictions specified in the Collateral Questionnaire, together with copies of all such filings disclosed by such search, and (B) UCC termination statements (or similar documents) duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements (or equivalent filings) disclosed in such search (other than any such financing statements in respect of Permitted Liens);
(iii) opinions of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) with respect to the creation and perfection of the security interests in favor of Collateral Agent in such Collateral and such other matters governed by the laws of each jurisdiction in which any Loan Party or any personal property Collateral is located as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent; and
(iv) evidence that each Loan Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including without limitation, (i) a landlord personal property collateral access agreement executed by the landlord of any leasehold property and by the applicable Loan Party Party, and (ii) any intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 7.03(h7.03(i)) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent.
(d) The Administrative Agent shall have received the Mortgages Borrower’s written plan (including all leasehold Mortgagesthe “Cost Reduction Plan”) with respect to each Material Owned Property, together with all additional documentation required setting forth the actions taken and to be delivered pursuant taken to clause reduce costs incurred by or associated with the Borrower’s Subsidiaries (g) of other than the definition of “Collateral and Guarantee Requirement”Operating Subsidiaries).
(e) The Administrative Agent shall have received (i) the audited consolidated balance sheets and related statements of income (if any) and Shareholders’ Equity of Parent and its Subsidiaries and unaudited consolidating balance sheets and related statements of income (if any) for the Fiscal Year of Parent ended December 31, 2017, (ii) unaudited consolidated and consolidating balance sheets and related statements of income (if any) of Parent and its Subsidiaries the Company for each subsequent fiscal quarter month after December 31, 2017 ended at least forty-five (45) days before the Closing Date, (iii) unaudited consolidated and consolidating balance sheets and related statements of income (if any) of Parent and its Subsidiaries for each fiscal month ended at least thirty-one (31) days before the Closing Date, Date and (ivii) forecasts prepared by management of Parent the Borrower of consolidated and consolidating balance sheets and sheets, income statements of Parent and its Subsidiaries cash flow statements on a monthly an annual basis for Fiscal Year 2018 and on a quarterly basis for Fiscal Year 2019 (“Projections”), in each case, in form and substance satisfactory to the Administrative Agent Required Lenders and prepared in accordance with GAAP as in effect at the time of such preparation.
(f) The Administrative Agent and the Lenders shall have completed, to their satisfaction, all legal, tax, environmental, management and background checks, business and other due diligence with respect to the business, assets, liabilities, operations and condition (financial or otherwise) of the Loan Parties (which shall include a review of all Material Agreements with the Loan Parties’ customers Borrower and suppliers), in each case, its Subsidiaries in scope and determination satisfactory to the Administrative Agent and the Lenders in its their sole discretion. The Administrative Agent shall have received a quality of earnings report from a Person who is not an Affiliate of the Borrower, in form and substance satisfactory to the Administrative Agent.
(g) Payment by the Borrower of all accrued costs, fees and expenses (including applicable Attorney Costs and the reasonable and documented out-of-pocket fees and expenses of any other advisorsadvisors to the Administrative Agent and the Lenders) and any other compensation due and payable to the Administrative Agent and Lenders on the Closing Date shall have been received.
(h) The Administrative Agent shall have received reasonably satisfactory evidence of insurance required to be maintained pursuant to Section 6.07 and the Collateral Agent shall be named as an additional loss payee and additional insured, as applicable, thereunder.
(i) Borrower shall have delivered to each Lender its duly executed Warrant Certificates.
(j) Borrower shall have established the ECF Lockbox Account.
(k) The Lenders shall have received on or prior to the Closing Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money anti‑money laundering rules and regulations, including without limitation the PATRIOT Act and customary management background checks, in order to allow the Lenders to comply therewith, in each case, to the extent requested at least five (5) Business Days prior to the Closing Date.
(lj) The Administrative Agent shall have received a certificate signed by a Responsible Officer of Borrower certifying as to Sections 4.01(m), (n) and (o) in substantially the form of Exhibit I.[Reserved].
(mk) The representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document shall be true and correct in all material respects on and as of the Closing Datedate of such Credit Extension (before and after giving effect to such Credit Extension); provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided further that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(nl) No Default or Event of Default shall existexist or would result from such proposed Credit Extension or from the application of the proceeds therefrom.
(o) There is no action, suit, investigation or proceeding pending or, to the knowledge of Borrower, threatened in any court or before an arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Williams Industrial Services Group Inc.)
Conditions to the Closing Date. The obligation of each Lender to make the Term Loan hereunder is subject to satisfaction or waiver in writing by the Lenders of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each properly executed by a Responsible Officer of the signing Loan Party, and each in form and substance satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement and the other Loan Documents by each Loan Party, Agent and Lender, as applicable;
(ii) an original Note executed by Borrower in favor of each Lender that has requested in writing a Note;
(iii) such certificates (including a certificate substantially in the form of Exhibit I) of resolutions or other corporate 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 on the Closing Date;
(iv) an opinion by Xxxxxxxx Xxxx Xxxxxxxx Xxxxxx Xxxxxxxx & Xxxxx, P.C., counsel to the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent;
(v) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) Loans on the Closing Date before and after giving effect the effectiveness of this Agreement are subject to the Transaction, from the chief financial officer of Parent in substantially the form of Exhibit J hereto;
(vi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Collateral Agent with respect to the Loan Parties together with evidence that, upon prior satisfaction of the conditions precedent contained in any applicable payoff letters, all existing Liens (other than Permitted Liens) will be terminated and released and all actions required to terminate and release such Liens have been satisfactorily taken or will be capable of being satisfactorily undertaken substantially simultaneously with the closing each of the Transaction; and
(vii) (A) Organization Documents of each Loan Party and (B) good standing certificates or certificates of status, as applicable, as of a date reasonably proximate to the Closing Date, from (1) the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation, and (2) the jurisdictions where the failure of a Loan Party to be qualified and in good standing could reasonably be expected to have a Material Adverse Effect and, where available, bring down certificates, for each Loan Party.
(b) As of the Closing Date, after giving effect to the Transaction, the Loan Parties will have no indebtedness other than the Facility and any Surviving Indebtedness specified on Schedule 7.03. All amounts due or outstanding in respect of the Exworks Facility and any other Indebtedness other than the Facility and any Surviving Indebtedness specified on Schedule 7.03 shall have been repaid in full, all commitments (if any) in respect thereof terminated, all guarantees (if any) thereof discharged and released and all security therefor (if any) released, together with all fees and other amounts owing thereon, or documentation in form and substance reasonably satisfactory to the Administrative Agent to effect such release upon such repayment and termination shall have been delivered to the Administrative Agent.
(c) In order to create in favor of Collateral Agent, for the benefit of the Lenders, a valid, perfected first priority security interest in the personal property Collateral, Collateral Agent shall have received:
(i) evidence satisfactory to Collateral Agent of the compliance by each Loan Party of their obligations under the Collateral Documents (including, without limitation, their obligations to authorize or execute, as the case may be, and deliver UCC financing statements, originals of securities, instruments and chattel paper, deposit account control agreements and any agreements governing securities accounts as provided therein);
(ii) a completed Collateral Questionnaire dated the Closing Date and executed by a Responsible Officer of each Loan Party, together with all attachments contemplated thereby, including (A) the results of a recent search, by a Person satisfactory to Collateral Agent, of all effective UCC financing statements (or equivalent filings) made with respect to any personal or mixed property of any Loan Party in the jurisdictions specified in the Collateral Questionnaire, together with copies of all such filings disclosed by such search, and (B) UCC termination statements (or similar documents) duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements (or equivalent filings) disclosed in such search (other than any such financing statements in respect of Permitted Liens);
(iii) opinions of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) with respect to the creation and perfection of the security interests in favor of Collateral Agent in such Collateral and such other matters governed by the laws of each jurisdiction in which any Loan Party or any personal property Collateral is located as Collateral Agent may reasonably requestfollowing conditions, in each case in form to the satisfaction of the Administrative Agent Shortfin Credit Agreement [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and substance reasonably satisfactory to Collateral Agent; and
filed separately with the Securities and Exchange Commission. and each of the Lenders (iv) evidence that each Loan Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including without limitation, (i) a landlord personal property collateral access agreement executed by the landlord of any leasehold property and by the applicable Loan Party and (ii) any intercompany notes evidencing Indebtedness permitted to be incurred unless waived pursuant to Section 7.03(h10.01(a)) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent.
(d) The Administrative Agent shall have received the Mortgages (including all leasehold Mortgages) with respect to each Material Owned Property, together with all additional documentation required to be delivered pursuant to clause (g) of the definition of “Collateral and Guarantee Requirement”.
(e) The Administrative Agent shall have received (i) the audited consolidated balance sheets and related statements of income (if any) and Shareholders’ Equity of Parent and its Subsidiaries and unaudited consolidating balance sheets and related statements of income (if any) for the Fiscal Year of Parent ended December 31, 2017, (ii) unaudited consolidated and consolidating balance sheets and related statements of income (if any) of Parent and its Subsidiaries for each subsequent fiscal quarter after December 31, 2017 ended at least forty-five (45) days before the Closing Date, (iii) unaudited consolidated and consolidating balance sheets and related statements of income (if any) of Parent and its Subsidiaries for each fiscal month ended at least thirty-one (31) days before the Closing Date, and (iv) forecasts prepared by management of Parent of consolidated and consolidating balance sheets and income statements of Parent and its Subsidiaries on a monthly basis for Fiscal Year 2018 and on a quarterly basis for Fiscal Year 2019 (“Projections”), in each case, in form and substance satisfactory to the Administrative Agent and prepared in accordance with GAAP as in effect at the time of such preparation.
(f) The Administrative Agent and the Lenders shall have completed, to their satisfaction, all legal, tax, environmental, management and background checks, business and other due diligence with respect to the business, assets, liabilities, operations and condition (financial or otherwise) of the Loan Parties (which shall include a review of all Material Agreements with the Loan Parties’ customers and suppliers), in each case, in scope and determination satisfactory to the Administrative Agent in its sole discretion. The Administrative Agent shall have received a quality of earnings report from a Person who is not an Affiliate of the Borrower, in form and substance satisfactory to the Administrative Agent.
(g) Payment by Borrower of all accrued costs, fees and expenses (including applicable Attorney Costs and the reasonable and documented out-of-pocket fees and expenses of any other advisors) and any other compensation due and payable to the Administrative Agent and Lenders on the Closing Date shall have been received.
(h) The Administrative Agent shall have received reasonably satisfactory evidence of insurance required to be maintained pursuant to Section 6.07 and the Collateral Agent shall be named as an additional loss payee and additional insured, as applicable, thereunder.
(i) Borrower shall have delivered to each Lender its duly executed Warrant Certificates.
(j) Borrower shall have established the ECF Lockbox Account.
(k) The Lenders shall have received on or prior to the Closing Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act and customary management background checks, in order to allow the Lenders to comply therewith, in each case, Date:
(a) Delivery to the extent Agents of each of the following Loan Documents, each duly executed and delivered by the parties thereto:
(i) this Agreement;
(ii) the CADA;
(iii) the Member Pledge;
(iv) the Security Agreement;
(v) the Fee Letters; and
(vi) the Notes (if requested at least five (5) Business Days prior to the Closing Dateby a Lender).
(lb) The Administrative Agent shall have received a certificate signed by a Responsible Officer Delivery to the Agents of Borrower certifying the LLC Agreements (amended and restated to comply with the provisions of this Agreement, as to Sections 4.01(mnecessary), (n) and (o) in substantially the form of Exhibit I..
(mc) The representations Each representation and warranties warranty of the Borrower and each other Loan Party contained in Article V or any other Loan Document is true and correct in all material respects as of the Closing Date, other than those representations and warranties that are modified by materiality by their own terms, which shall be true and correct in all material respects on and as of the Closing Date; provided that to the extent that , (unless such representations and warranties specifically refer representation or warranty relates solely to an earlier date, they in which case it shall be have been true and correct in all material respects as of such earlier date; provided further .
(d) As of the Closing Date, no event shall have occurred and be continuing or would result from the consummation of the transactions contemplated by this Agreement or the other Loan Documents (including the Borrowing of the Loan or the application of the proceeds therefrom) on the Closing Date that any representation would constitute a Default or an Event of Default under this Agreement or would result from the Borrowing of the Loan or from the application of the proceeds therefrom.
(e) Delivery to the Administrative Agent and warranty that is qualified each Lender of the following:
(i) a secretary’s certificate, satisfactory in form and substance to the Administrative Agent, from each Loan Party and the Limited Guarantor, signed by each of its respective authorized Responsible Officers and dated as of the Closing Date, attaching and certifying as to “materiality”the Organizational Documents of each such party (which, “Material Adverse Effect” or similar language to the extent filed with a Governmental Authority, shall be certified as of a recent date by such Governmental Authority), and attaching and certifying as to the resolutions of the governing body of each such Person, the good standing, existence or its equivalent of each such party and of the incumbency of the Responsible Officers of each such Person; Shortfin Credit Agreement [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
(ii) a certificate from a Responsible Officer of each Loan Party certifying to (A) the representations and warranties made by such Loan Party (and in the case of the Borrower, for each Borrower Subsidiary Party) in each Loan Document to which it is a party being true and correct in all material respects as of the Closing Date (after giving effect unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date), (B) the absence of a Default or an Event of Default, (C) the absence of any qualification thereinmaterial breach by any Funded Subsidiary of any Project Documents to which it is a party, (D) the absence of a Bankruptcy Event with respect to each of SolarCity, each Loan Party and each Funded Subsidiary, and (E) the satisfaction (or waiver by the Administrative Agent and each Lender) of all conditions precedent to the Closing Date in accordance with the terms and conditions hereof;
(iii) an opinion, dated as of the Closing Date, of Wxxxxx Xxxxxxx Xxxxxxxx & Rxxxxx, counsel to the Loan Parties and SolarCity, as to the matters set forth in Exhibit D and otherwise in form and substance reasonably acceptable to the Agents and each Lender; and
(iv) an opinion, dated as of the Closing Date, of Proskauer Rose LLP, special bankruptcy counsel to the Loan Parties, in form and substance reasonably acceptable to the Agents and each Lender.
(f) All Liens contemplated by the Collateral Documents to be created and perfected in favor of the Collateral Agent as of the Closing Date shall have been perfected, recorded and filed in the appropriate jurisdictions.
(g) The Administrative Agent and the Collateral Agent shall have received (i) searches of UCC filings in the jurisdiction of incorporation or formation, as applicable, of each Loan Party and each jurisdiction where a filing would need to be made in order to perfect the security interest of the Collateral Agent (for the benefit of the Secured Parties) in the Collateral, (ii) copies of the financing statements on file in such jurisdictions and evidence that no Liens exist on the Collateral other than Permitted Liens of the type set forth in clauses (b), (c) or (d) of the definition thereof and (iii) copies of tax lien, judgment and bankruptcy searches in such jurisdictions.
(h) The UCC financing statements relating to the Collateral being secured as of the Closing Date shall have been duly filed in each office and in each jurisdiction where required in order to create and perfect the first Lien and security interest set forth in the Collateral Documents. Each Loan Party shall have properly delivered or caused to be delivered to the Collateral Agent all respects on Collateral that requires perfection of the Lien and security interest described above by possession or control, including delivery of original certificates representing all issued and outstanding Equity Interests in the Borrower and each Managing Member along with blank transfer powers and proxies.
(i) All amounts required to be paid to or deposited with the Administrative Agent, the Collateral Agent, the Depositary or any Lender under this Agreement or any other Loan Shortfin Credit Agreement [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. Document, or under any separate agreement with such respective datesparties, and all taxes, fees and other costs payable in connection with the execution, delivery and filing of the documents and instruments required to be filed pursuant to this Section 4.01, shall have been paid in full (or in connection with such taxes, fees (other than fees payable to the Lenders or the Agents) and costs, the Borrower shall have made other arrangements acceptable to the Agents, the Depositary or such Lender(s), as the case may be, in their sole discretion).
(j) The Agents and Lenders shall have received all such documentation and information requested by the Agents and the Lenders that is necessary (including the names and addresses of the Borrower, taxpayer identification forms, name of officers/board members, documents and copies of government-issued identification of the Borrower, the Member or owners thereof) for the Agents and the Lenders to identify the Borrower, the Member or owners thereof in accordance with the requirements of the Patriot Act (including the “know your customer” and similar regulations thereunder).
(k) All Accounts required to be open as of the Closing Date under the CADA shall have been opened, and the Interest Reserve Account shall be fully funded in accordance with the terms of the CADA.
(l) The expenses incurred and invoiced as of or prior to the Closing Date shall have been paid by the Borrower or its Affiliates in accordance with Section 10.04(a).
(m) The Borrower shall have delivered its most recently available unaudited financial statements of the Borrower, each Borrower Subsidiary Party, each Subject Fund and the Limited Guarantor (with respect to the Limited Guarantor only, to the extent not otherwise publicly available) in form and substance satisfactory to the Administrative Agent in its sole discretion.
(n) No Default The Borrower shall have obtained all material approvals (to the extent required to have been obtained by such time) and all material consents of any Persons or Event modifications to Project Documents or Organizational Documents of Default any Subject Fund (including any Tax Equity Required Consent), in each case that are necessary for its entry into the Loan Documents to which it is a party and implementation of the transactions contemplated in the Loan Documents, each of which is listed on Schedule 4.01(n), except the [***] Tax Equity Required Consent. Each of the foregoing shall existbe in full force and effect and in form and substance reasonably satisfactory to the Administrative Agent.
(o) There is The Administrative Agent shall have received the Tax Equity Model for each Subject Fund.
(p) The Administrative Agent shall have received a Loan Notice in accordance with Section 2.02(a) no actionlater than 9:00 a.m. on the Closing Date and Advance Models that are each reviewed, suitaccepted and approved by the Administrative Agent.
(q) To the Borrower’s Knowledge, investigation no event or proceeding pending or, to the knowledge of Borrower, threatened in any court or before an arbitrator or governmental authority circumstance exists that could reasonably be expected to have result in a Material Adverse Effect. Shortfin Credit Agreement [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
(r) To the extent not previously delivered to the Administrative Agent, for the benefit of each Lender, delivery (which delivery shall be made electronically by making such material available in an online dataroom) of true, correct and complete copies of (i) each Project Document in respect of each Subject Fund and all other transaction documents (if any) in respect of each Subject Fund, (ii) each Customer Agreement for each Current System, (iii) the System Information for each Current System and (iv) any other data, documentation, analysis or report reasonably requested by the Administrative Agent with respect to such Systems or the associated Host Customers and commercially available to the Borrower, in each case with respect to a Current System and, as reasonably requested by any Lender for informational purposes only, to the extent not otherwise publicly available and in possession of the Borrower or its Affiliates, the Borrower has delivered to such Lender financial statements and/or credit reports with respect to a Current System with a commercial Host Customer that does not have a publicly available rating from a recognized national rating agency that was current as of the date that the Customer Agreement corresponding to such Current System was executed.
(s) Each Current System (i) shall be a System subject to a Subject Fund, (ii) is a (x) PTO System or (y) if any Inspected System, shall have been funded by the applicable Investor to the extent then required pursuant to the applicable Project Document.
Appears in 1 contract
Samples: Credit Agreement (Solarcity Corp)
Conditions to the Closing Date. The obligation obligations of each Lender the Lenders to make Loans and of the Term Loan Issuing Bank to make LC Credit Extensions hereunder is subject shall not become effective unless, on or prior to satisfaction or waiver in writing by the Lenders April 15, 2008, each of the following conditions precedent:is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent’s receipt OMX Transaction Agreement shall have not been amended or modified in any respect that is materially adverse to the Lenders without the consent of the Arrangers (which consent shall not be unreasonably withheld). The conditions to the completion of the OMX Acquisition set forth in the OMX Transaction Agreement shall have been satisfied in all material respects in accordance with the OMX Transaction Agreement without any waiver by the Borrower that is materially adverse to the Lenders unless the Arrangers shall have consented to such waiver, which consent shall not be unreasonably withheld, and the OMX Acquisition shall be consummated substantially concurrently with the initial borrowings hereunder.
(b) The Administrative Agent shall have received confirmation that, pursuant to the OMX Acquisition, substantially concurrently with the making of the initial Loans hereunder, the Borrower will own OMX Shares which represent more than 66 2/3% of the OMX Shares (on a fully diluted basis).
(c) The Administrative Agent shall have received 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 a date on or prior to the Closing Date and each in form and substance satisfactory to the Administrative Agent and its legal counselthe Arrangers:
(i) executed counterparts of this the Collateral Agreement from the Borrower and the other each Subsidiary Loan Documents by Party together with (x) Uniform Commercial Code financing statements for each Loan PartyParty in appropriate form for filing with the Secretary of State of each applicable jurisdiction, (y) stock certificates and stock powers in favor of the Administrative Agent with respect to all certificated Equity Interests pledged thereunder to the extent required by the Collateral Agreement; provided that, to the extent any Collateral (other than the pledge and Lenderperfection of the security interests in the capital stock of wholly-owned domestic Subsidiaries held by the Loan Parties (to the extent required by the Collateral Agreement) and other assets pursuant to which a Lien may be perfected by the filing of a financing statement under the Uniform Commercial Code) is not provided on the Closing Date after the Borrower has used commercially reasonable efforts to do so, as applicablethe delivery of such Collateral shall not constitute a condition precedent to the availability of the Loans on the Closing Date but shall be required to be delivered after the Closing Date pursuant to Section 5.13(d);
(ii) an original Note lien searches with respect to each Loan Party in such jurisdictions as may be reasonably requested by the Administrative Agent;
(iii) a promissory note executed by the Borrower in favor of each Lender that has requested requesting three Business Days in writing advance a Notepromissory note evidencing the Loan provided by such Lender;
(iiiiv) such certificates (including a certificate substantially in the form of Exhibit I) of resolutions or other corporate 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 on the Closing Dateparty;
(ivv) an a certificate of good standing for each Loan Party from its jurisdiction of organization;
(vi) a certificate signed by the Chief Financial Officer of the Borrower certifying as to the solvency of the Borrower and its Subsidiaries (on a consolidated basis) after giving effect to the OMX Acquisition and the incurrence of all Indebtedness related thereto; and
(vii) a favorable opinion by Xxxxxxxx of Skadden, Arps, Slate, Xxxxxxx & Xxxx Xxxxxxxx Xxxxxx Xxxxxxxx & Xxxxx, P.C.LLP, counsel to the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent;
(v) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) on the Closing Date before and after giving effect to the Transaction, from the chief financial officer of Parent in substantially the form of Exhibit J hereto;
(vi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Collateral Agent with respect local counsel to the Loan Parties together with evidence thatParties, upon satisfaction of the conditions precedent contained in any applicable payoff letters, all existing Liens (other than Permitted Liens) will be terminated and released and all actions required to terminate and release such Liens have been satisfactorily taken or will be capable of being satisfactorily undertaken substantially simultaneously with the closing of the Transaction; and
(vii) (A) Organization Documents of each Loan Party and (B) good standing certificates or certificates of status, as applicable, as of a date reasonably proximate to the Closing Date, from (1) the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation, and (2) the jurisdictions where the failure of a Loan Party to be qualified and in good standing could reasonably be expected to have a Material Adverse Effect and, where available, bring down certificates, for each Loan Party.
(b) As of the Closing Date, after giving effect to the Transaction, the Loan Parties will have no indebtedness other than the Facility and any Surviving Indebtedness specified on Schedule 7.03. All amounts due or outstanding in respect of the Exworks Facility and any other Indebtedness other than the Facility and any Surviving Indebtedness specified on Schedule 7.03 shall have been repaid in full, all commitments (if any) in respect thereof terminated, all guarantees (if any) thereof discharged and released and all security therefor (if any) released, together with all fees and other amounts owing thereon, or documentation in form and substance reasonably satisfactory addressed to the Administrative Agent to effect such release upon such repayment and termination shall have been delivered to the Administrative Agent.
(c) In order to create in favor of Collateral Agenteach Lender, for the benefit of the Lenders, a valid, perfected first priority security interest in the personal property Collateral, Collateral Agent shall have received:
(i) evidence satisfactory to Collateral Agent of the compliance by each Loan Party of their obligations under the Collateral Documents (including, without limitation, their obligations to authorize or execute, form attached as the case may be, and deliver UCC financing statements, originals of securities, instruments and chattel paper, deposit account control agreements and any agreements governing securities accounts as provided therein);
(ii) a completed Collateral Questionnaire dated the Closing Date and executed by a Responsible Officer of each Loan Party, together with all attachments contemplated thereby, including (A) the results of a recent search, by a Person satisfactory to Collateral Agent, of all effective UCC financing statements (or equivalent filings) made with respect to any personal or mixed property of any Loan Party in the jurisdictions specified in the Collateral Questionnaire, together with copies of all such filings disclosed by such search, and (B) UCC termination statements (or similar documents) duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements (or equivalent filings) disclosed in such search (other than any such financing statements in respect of Permitted Liens);
(iii) opinions of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) with respect to the creation and perfection of the security interests in favor of Collateral Agent in such Collateral and such other matters governed by the laws of each jurisdiction in which any Loan Party or any personal property Collateral is located as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent; and
(iv) evidence that each Loan Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including without limitation, (i) a landlord personal property collateral access agreement executed by the landlord of any leasehold property and by the applicable Loan Party and (ii) any intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 7.03(h)) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent.Exhibit D.
(d) The Administrative Agent representations and warranties made by the Loan Parties in Section 3.01(c), Section 3.02(b), Section 3.08, Section 3.16 and Section 3.17 as they relate to the Loan Parties at such time shall have received the Mortgages (including be true and correct in all leasehold Mortgages) with respect to each Material Owned Property, together with all additional documentation required to be delivered pursuant to clause (g) of the definition of “Collateral and Guarantee Requirement”material respects.
(e) The Administrative Agent shall have received (i) the audited consolidated balance sheets All accrued fees and related statements expenses of income (if any) and Shareholders’ Equity of Parent and its Subsidiaries and unaudited consolidating balance sheets and related statements of income (if any) for the Fiscal Year of Parent ended December 31, 2017, (ii) unaudited consolidated and consolidating balance sheets and related statements of income (if any) of Parent and its Subsidiaries for each subsequent fiscal quarter after December 31, 2017 ended at least forty-five (45) days before the Closing Date, (iii) unaudited consolidated and consolidating balance sheets and related statements of income (if any) of Parent and its Subsidiaries for each fiscal month ended at least thirty-one (31) days before the Closing Date, and (iv) forecasts prepared by management of Parent of consolidated and consolidating balance sheets and income statements of Parent and its Subsidiaries on a monthly basis for Fiscal Year 2018 and on a quarterly basis for Fiscal Year 2019 (“Projections”), in each case, in form and substance satisfactory to the Administrative Agent and prepared in accordance with GAAP as in effect at the time Lead Arrangers (including the fees and expenses of such preparationcounsel for the Administrative Agent and the Lead Arrangers and local and special counsel for the Administrative Agent and the Lead Arrangers) shall have been paid. The Borrower shall have paid all items then due and payable under the Fee Letter.
(f) The Administrative Agent and the Lenders shall have completed, to their satisfaction, all legal, tax, environmental, management and background checks, business and other due diligence with respect to the business, assets, liabilities, operations and condition (financial or otherwise) of the Loan Parties (which shall include a review of all Material Agreements with the Loan Parties’ customers and suppliers), in each case, in scope and determination satisfactory to the Administrative Agent in its sole discretion. The Administrative Agent shall have received a quality Borrowing Request in accordance with the requirements of earnings report from a Person who is not an Affiliate of the Borrower, in form and substance satisfactory to the Administrative AgentSection 2.03 hereof.
(g) Payment by Borrower of all accrued costs, fees and expenses (including applicable Attorney Costs and the reasonable and documented out-of-pocket fees and expenses of any other advisors) and any other compensation due and payable to the Administrative Agent and Lenders on the Closing Date shall have been received.
(h) The Administrative Agent shall have received reasonably satisfactory evidence of insurance required to be maintained pursuant to Section 6.07 and the Collateral Agent shall be named as an additional loss payee and additional insured, as applicable, thereunder.
(i) Borrower shall have delivered to each Lender its duly executed Warrant Certificates.
(j) Borrower shall have established the ECF Lockbox Account.
(k) The Lenders shall have received on or prior to the Closing Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act and customary management background checks, in order to allow the Lenders to comply therewith, in each case, to the extent requested at least five (5) Business Days prior to the Closing Date.
(l) The Administrative Agent shall have received a certificate signed by a Responsible Officer of Borrower certifying as to Sections 4.01(m), (n) and (o) in substantially the form of Exhibit I.
(m) The representations and warranties of Borrower and each other Loan Party contained in Article V or any other Loan Document shall be true and correct in all material respects on and as of the Closing Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided further that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(n) No Default or Event of Default shall exist.
(o) There is no action, suit, investigation or proceeding pending or, to the knowledge of Borrower, threatened in any court or before an arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Conditions to the Closing Date. The obligation obligations of each Lender the Lenders to make Loans on the Term Loan hereunder is Closing Date are subject to satisfaction or waiver in writing by the Lenders each of the following conditions precedentbeing satisfied (or waived in accordance with Section 9.02) on or prior to the Closing Date:
(a) The Administrative Agent’s receipt of the following, each properly executed by a Responsible Officer of Effective Date shall have occurred or shall occur simultaneously with the signing Loan Party, and each in form and substance satisfactory to Closing Date.
(b) the Administrative Agent and its shall have received the executed legal counsel:
opinion of Xxxxx Xxxxxxx LLP, U.S. counsel to the Borrower (i) executed counterparts in the same form as that delivered to the administrative agent under the Senior Credit Agreement in connection with the effectiveness of the credit facilities thereunder as appropriately modified to reflect this Agreement and the other Loan Documents by each Loan Party, Agent and Lender, as applicableparties hereto);
(c) substantially concurrently with the funding of the Loans on the Closing Date, the Canopy Investment shall have been consummated in accordance with the Investment Agreements, and the Investment Agreements shall not have been amended or modified by the Company, and no condition shall have been waived or consent granted by the Company, in any respect that is materially adverse to the Lenders or the Arrangers without the Arrangers’ prior written consent (it being understood and agreed that (i) any amendment, modification, waiver or consent that results in a change to the definition of the term “Material Adverse Effect” (as defined in the Subscription Agreement) shall be deemed to be materially adverse to the Lenders and the Arrangers, and (ii) an original Note executed (a) any decrease in the Investment Consideration (as defined in the Subscription Agreement) that is accompanied by Borrower a dollar-for-dollar reduction in favor Commitments and (b) any increase in the Investment Consideration, together with any other increases since the date of the Commitment Letter which does not exceed 5% of the Investment Consideration, in each Lender that has requested in writing a Notecase shall be deemed not to be materially adverse to the Lenders);
(iiid) such certificates since March 31, 2018, no Material Adverse Effect (including as defined in the Subscription Agreement as in effect on the date of the Commitment Letter) shall have occurred;
(e) the Administrative Agent shall have received a certificate substantially in the form of Exhibit IG signed by a Responsible Officer of the Company with specific knowledge about the subject matter thereof, (i) certifying that the conditions specified in Sections 4.02(c), (d) and (g) have been satisfied, (ii) setting forth the current Debt Ratings on the Closing Date and (iii) with respect to the certain matters related to the business of resolutions or other corporate action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as Canopy set forth therein;
(f) 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 on the Closing Date;
(iv) an opinion by Xxxxxxxx Xxxx Xxxxxxxx Xxxxxx Xxxxxxxx & Xxxxx, P.C., counsel to the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent;
(v) shall have received a certificate attesting to the Solvency of the Loan Parties Company and its Subsidiaries (taken as a whole) on the Closing Date before and after giving effect to the Transaction, from the chief financial officer of Parent Transactions in substantially the form of Exhibit J hereto;
(vi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Collateral Agent with respect to the Loan Parties together with evidence thatD, upon satisfaction of the conditions precedent contained in any applicable payoff letters, all existing Liens (other than Permitted Liens) will be terminated and released and all actions required to terminate and release such Liens have been satisfactorily taken or will be capable of being satisfactorily undertaken substantially simultaneously with the closing of the Transaction; and
(vii) (A) Organization Documents of each Loan Party and (B) good standing certificates or certificates of status, as applicable, dated as of a date reasonably proximate to the Closing Date, from (1) the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation, and (2) the jurisdictions where the failure of a Loan Party to be qualified and in good standing could reasonably be expected to have a Material Adverse Effect and, where available, bring down certificates, for each Loan Party.
(b) As of the Closing Date, after giving effect to the Transaction, the Loan Parties will have no indebtedness other than the Facility and any Surviving Indebtedness specified on Schedule 7.03. All amounts due or outstanding in respect of the Exworks Facility and any other Indebtedness other than the Facility and any Surviving Indebtedness specified on Schedule 7.03 shall have been repaid in full, all commitments (if any) in respect thereof terminated, all guarantees (if any) thereof discharged and released and all security therefor (if any) released, together with all fees and other amounts owing thereon, or documentation in form and substance reasonably satisfactory to the Administrative Agent to effect such release upon such repayment and termination shall have been delivered to the Administrative Agent.
(c) In order to create in favor of Collateral Agent, for the benefit of the Lenders, a valid, perfected first priority security interest in the personal property Collateral, Collateral Agent shall have received:
(i) evidence satisfactory to Collateral Agent of the compliance by each Loan Party of their obligations under the Collateral Documents (including, without limitation, their obligations to authorize or execute, as the case may be, and deliver UCC financing statements, originals of securities, instruments and chattel paper, deposit account control agreements and any agreements governing securities accounts as provided therein);
(ii) a completed Collateral Questionnaire dated the Closing Date and executed by a Responsible Financial Officer of each Loan Party, together with all attachments contemplated thereby, including (A) the results of a recent search, by a Person satisfactory to Collateral Agent, of all effective UCC financing statements (or equivalent filings) made with respect to any personal or mixed property of any Loan Party in the jurisdictions specified in the Collateral Questionnaire, together with copies of all such filings disclosed by such search, and (B) UCC termination statements (or similar documents) duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements (or equivalent filings) disclosed in such search (other than any such financing statements in respect of Permitted Liens)Company;
(iii) opinions of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) with respect to the creation and perfection of the security interests in favor of Collateral Agent in such Collateral and such other matters governed by the laws of each jurisdiction in which any Loan Party or any personal property Collateral is located as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent; and
(iv) evidence that each Loan Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including without limitation, (i) a landlord personal property collateral access agreement executed by the landlord of any leasehold property and by the applicable Loan Party and (ii) any intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 7.03(h)) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent.
(d) The Administrative Agent shall have received the Mortgages (including all leasehold Mortgages) with respect to each Material Owned Property, together with all additional documentation required to be delivered pursuant to clause (g) of the definition of “Collateral and Guarantee Requirement”.
(e) The Administrative Agent shall have received (i) the audited consolidated balance sheets and related statements of income (if any) and Shareholders’ Equity of Parent and its Subsidiaries and unaudited consolidating balance sheets and related statements of income (if any) for the Fiscal Year of Parent ended December 31, 2017, (ii) unaudited consolidated and consolidating balance sheets and related statements of income (if any) of Parent and its Subsidiaries for each subsequent fiscal quarter after December 31, 2017 ended at least forty-five (45) days before the Closing Date, (iii) unaudited consolidated and consolidating balance sheets and related statements of income (if any) of Parent and its Subsidiaries for each fiscal month ended at least thirty-one (31) days before the Closing Date, and (iv) forecasts prepared by management of Parent of consolidated and consolidating balance sheets and income statements of Parent and its Subsidiaries on a monthly basis for Fiscal Year 2018 and on a quarterly basis for Fiscal Year 2019 (“Projections”), in each case, in form and substance satisfactory to the Administrative Agent and prepared in accordance with GAAP as in effect at the time of such preparation.
(f) The Administrative Agent and the Lenders shall have completed, to their satisfaction, all legal, tax, environmental, management and background checks, business and other due diligence with respect to the business, assets, liabilities, operations and condition (financial or otherwise) of the Loan Parties (which shall include a review of all Material Agreements with the Loan Parties’ customers and suppliers), in each case, in scope and determination satisfactory to the Administrative Agent in its sole discretion. The Administrative Agent shall have received a quality of earnings report from a Person who is not an Affiliate of the Borrower, in form and substance satisfactory to the Administrative Agent.
(g) Payment by Borrower of all accrued costs, fees the Specified Representations and expenses (including applicable Attorney Costs and the reasonable and documented out-of-pocket fees and expenses of any other advisors) and any other compensation due and payable to the Administrative Agent and Lenders on the Closing Date shall have been received.
(h) The Administrative Agent shall have received reasonably satisfactory evidence of insurance required to be maintained pursuant to Section 6.07 and the Collateral Agent shall be named as an additional loss payee and additional insured, as applicable, thereunder.
(i) Borrower shall have delivered to each Lender its duly executed Warrant Certificates.
(j) Borrower shall have established the ECF Lockbox Account.
(k) The Lenders shall have received on or prior to the Closing Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act and customary management background checks, in order to allow the Lenders to comply therewith, in each case, to the extent requested at least five (5) Business Days prior to the Closing Date.
(l) The Administrative Agent shall have received a certificate signed by a Responsible Officer of Borrower certifying as to Sections 4.01(m), (n) and (o) in substantially the form of Exhibit I.
(m) The representations and warranties of Borrower and each other Loan Party contained in Article V or any other Loan Document Investment Agreements Representations shall be true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) on and as of the Closing Date; provided that to the extent that Date (unless such representations and warranties specifically refer Specified Representations relate to an earlier date, they in which case, such Specified Representations shall be true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) as of such earlier date;
(h) the Administrative Agent and the Arrangers shall have received:
(i) with respect to the Company and its Subsidiaries, (i) audited consolidated balance sheets and related statements of comprehensive income (loss), stockholder’s equity and cash flows for the three most recently completed fiscal years ended at least 60 days prior to the Closing Date (the “Company Audited Financial Statements”) and (ii) unaudited consolidated balance sheets and related unaudited statements of comprehensive income and cash flows for each interim fiscal quarter ended since the last audited financial statements and at least 40 days prior to the Closing Date (the “Company Interim Financial Statements”); provided further that any representation filing of the required financial statements on Form 10-K and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.Form 10-Q by the Company will satisfy the foregoing requirements;
(nii) No Default or Event with respect to the Target and its Subsidiaries, (i) audited consolidated balance sheets and related statements of Default shall exist.comprehensive income(loss), stockholder’s equity and cash flows for the three most recently completed fiscal years ended at least 91 days prior to the Closing Date (the “Target Audited Financial Statements”) and (ii) unaudited consolidated balance sheets and related unaudited statements of comprehensive income (loss) and cash flows for each interim fiscal quarter ended since the last audited financial statements and at least 46 days prior to the Closing Date (the “Target Interim Financial Statements”); provided that filing of the required financial statements on Form 40-F and Form 6-K by the Target will satisfy the foregoing requirements;
(oi) There is no actionthe Administrative Agent shall have received a Borrowing Request in accordance with Section 2.03; and
(j) the Company shall have paid, suitby wire transfer of immediately available funds, investigation or proceeding pending orall reasonable and documented in reasonable detail costs, fees, out-of-pocket expenses, compensation and other amounts then due and payable as previously agreed in the Commitment Letter and Fee Letter, in the case of the costs and out-of-pocket expenses, to the knowledge of Borrower, threatened in any court or before an arbitrator or governmental authority that could reasonably be expected extent invoiced at least three Business Days prior to have a Material Adverse Effectthe Closing Date.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Constellation Brands, Inc.)
Conditions to the Closing Date. The obligation of each Lender to make the Term Loan hereunder is subject to satisfaction or waiver in writing by the Lenders of the following conditions precedent:
(a) The Administrative Agent’s receipt of the following, each properly executed by a Responsible Officer of the signing Loan Party, and each in form and substance satisfactory to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement and the other Loan Documents by each Loan Party, Agent and Lender, as applicable;
(ii) an original Note executed by Borrower in favor of each Lender that has requested in writing a Note;
(iii) such certificates (including a certificate substantially in the form of Exhibit I) of resolutions or other corporate 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 on the Closing Date;
(iv) an opinion by Xxxxxxxx Xxxx Xxxxxxxx Xxxxxx Xxxxxxxx & Xxxxx, P.C., counsel to the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent;
(v) a certificate attesting to the Solvency of the Loan Parties (taken as a whole) on the Closing Date before and after giving effect to the Transaction, from the chief financial officer of Parent in substantially the form of Exhibit J hereto;
(vi) copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Collateral Agent with respect to the Loan Parties together with evidence that, upon satisfaction of the conditions precedent contained in any applicable payoff letters, all existing Liens (other than Permitted Liens) will be terminated and released and all actions required to terminate and release such Liens have been satisfactorily taken or will be capable of being satisfactorily undertaken substantially simultaneously with the closing of the Transaction; and
(vii) (A) Organization Documents of each Loan Party and (B) good standing certificates or certificates of status, as applicable, as of a date reasonably proximate to the Closing Date, from (1) the applicable Governmental Authority of each Loan Party’s jurisdiction of incorporation, organization or formation, and (2) the jurisdictions where the failure of a Loan Party to be qualified and in good standing could reasonably be expected to have a Material Adverse Effect and, where available, bring down certificates, for each Loan Party.
(b) As of the Closing Date, after giving effect to the Transaction, the Loan Parties will have no indebtedness Indebtedness other than the Facility and any Surviving Indebtedness specified on Schedule 7.03. All amounts due or outstanding in respect of the Exworks Existing Credit Facility and any other Indebtedness other than the Facility and any Surviving Indebtedness specified on Schedule 7.03 shall have been repaid in full, all commitments (if any) in respect thereof terminated, all guarantees (if any) thereof discharged and released and all security therefor (if any) released, together with all fees and other amounts owing thereon, or documentation in form and substance reasonably satisfactory to the Administrative Agent to effect such release upon such repayment and termination shall have been delivered to the Administrative Agent.
(c) In order to create in favor of Collateral Agent, for the benefit of the Lenders, a valid, perfected first priority security interest in the personal property Collateral, Collateral Agent shall have received:
(i) evidence satisfactory to Collateral Agent of the compliance by each Loan Party of their obligations under the Collateral Documents (including, without limitation, their obligations to authorize or execute, as the case may be, and deliver UCC financing statements, originals of securities, instruments and chattel paper, deposit account control agreements and any agreements governing securities accounts as provided therein);
(ii) a completed Collateral Questionnaire dated the Closing Date and executed by a Responsible Officer of each Loan Party, together with all attachments contemplated thereby, including (A) the results of a recent search, by a Person satisfactory to Collateral Agent, of all effective UCC financing statements (or equivalent filings) made with respect to any personal or mixed property of any Loan Party in the jurisdictions specified in the Collateral Questionnaire, together with copies of all such filings disclosed by such search, and (B) UCC termination statements (or similar documents) duly executed by all applicable Persons for filing in all applicable jurisdictions as may be necessary to terminate any effective UCC financing statements (or equivalent filings) disclosed in such search (other than any such financing statements in respect of Permitted Liens);
(iii) opinions of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) with respect to the creation and perfection of the security interests in favor of Collateral Agent in such Collateral and such other matters governed by the laws of each jurisdiction in which any Loan Party or any personal property Collateral is located as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent; and
(iv) evidence that each Loan Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including without limitation, (i) a landlord personal property collateral access agreement executed by the landlord of any leasehold property and by the applicable Loan Party and (ii) any intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 7.03(h)) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by Collateral Agent.
(d) The Administrative Agent shall have received the Mortgages (including all leasehold Mortgages) with respect to each Material Owned Property, together with all additional documentation required to be delivered pursuant to clause (g) of the definition of “Collateral and Guarantee Requirement”.
(e) The Administrative Agent shall have received (i) the audited consolidated balance sheets and related statements of income (if any) and Shareholders’ Equity of Parent and its Subsidiaries and unaudited consolidating balance sheets and related statements of income (if any) for the Fiscal Year of Parent ended December 31, 2017, (ii) unaudited consolidated and consolidating balance sheets and related statements of income (if any) of Parent and its Subsidiaries for each subsequent fiscal quarter after December 31, 2017 ended at least forty-five (45) days before the Closing Date, (iii) unaudited consolidated and consolidating balance sheets and related statements of income (if any) of Parent and its Subsidiaries for each fiscal calendar month ended at least thirty-one (31) days before the Closing Date, (iv) a plan with respect to Borrower’s Capital Expenditures during the term of this Agreement and (ivv) forecasts prepared by management of Parent of consolidated and consolidating balance sheets and income statements of Parent and its Subsidiaries on a monthly basis for Fiscal Year 2018 2019 and on a quarterly basis for Fiscal Year 2019 2020, 2021 and Fiscal Year 202 (“Projections”), in each case, in form and substance satisfactory to the Administrative Agent and prepared in accordance with GAAP as in effect at the time of such preparation.
(f) The Administrative Agent and the Lenders shall have completed, to their satisfaction, all legal, tax, environmental, management and background checks, business and other due diligence with respect to the business, assets, liabilities, operations and condition (financial or otherwise) of the Loan Parties (which shall include a review of all Material Agreements with the Loan Parties’ customers and suppliers), in each case, in scope and determination satisfactory to the Administrative Agent in its sole discretion. The Administrative Agent shall have received a quality of earnings report from a Person who is not an Affiliate of the Borrower, in form and substance satisfactory to the Administrative Agent.
(g) Payment by Borrower of all accrued costs, fees and expenses (including applicable Attorney Costs and the reasonable and documented out-of-pocket fees and expenses of any other advisors) and any other compensation due and payable to the Administrative Agent and Lenders on the Closing Date shall have been received.
(h) The Administrative Agent shall have received reasonably satisfactory evidence of insurance required to be maintained pursuant to Section 6.07 and the Collateral Agent shall be named as an additional loss payee and additional insured, as applicable, thereunder.
(i) Borrower shall have delivered to each Lender its duly executed Warrant Certificates.
(j) Borrower shall have established the ECF Lockbox Account.
(k) The Lenders shall have received on or prior to the Closing Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act and customary management background checks, in order to allow the Lenders to comply therewith, in each case, to the extent requested at least five (5) Business Days prior to the Closing Date.
(lj) The Administrative Agent shall have received a certificate signed by a Responsible Officer of Borrower certifying as to Sections 4.01(m4.01(k), (nl) and (om) in substantially the form of Exhibit I.
(mk) The representations and warranties of Borrower and each other Loan Party contained in Article V or any other Loan Document shall be true and correct in all material respects on and as of the Closing Date; provided that to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided further that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(nl) No Default or Event of Default shall exist.
(om) There is no action, suit, investigation or proceeding pending or, to the knowledge of Borrower, threatened in any court or before an arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect.
(n) The Administrative Agent shall have received satisfactory evidence that Consolidated Adjusted EBITDA for the trailing 12 month period most recently ended is not less than $5,500,000 with adjustments satisfactory to the Administrative Agent.
Appears in 1 contract
