Common use of Conditions to the Initial Credit Extension Clause in Contracts

Conditions to the Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent: (a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders: (i) executed counterparts of this Agreement and each other Loan Document (to the extent not previously delivered to the Administrative Agent), sufficient in number for distribution to each Agent, each Lender and the Borrowing Agent; (ii) to the extent not delivered pursuant to clause (i) above, a Note executed by the Borrowers in favor of each Lender requesting a Note; (iii) evidence that the Collateral Documents (other than the Landlord Waivers) shall be effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a legal, valid and enforceable first security interest and Lien upon the Collateral, including, without limitation, (A) searches of UCC filings in the jurisdiction of organization or formation of each Loan Party, in each jurisdiction where a filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral, and in each other jurisdiction requested by the Administrative Agent, (B) copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Liens permitted hereunder, and (C) proper UCC-1 financing statements in form appropriate for filing under the UCC and of each jurisdiction that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby; (iv) a Committed Loan Notice; (v) the Financial Model and a pro forma balance sheet of Borrowing Agent and its Subsidiaries as of and for the Fiscal Quarter ending on March 31, 2021 reflecting the consolidated financial position of such Persons as of such date, adjusted to give effect (as if such events had occurred on such date) to (1) the making of the initial Credit Extensions on the Closing Date and (2) the payment of all legal, accounting and other fees related thereto to the extent known at the time of the preparation of such balance sheet; (vi) a draft of unaudited financial statements, including an income statement, balance sheet and cash flow statements, for the Fiscal Quarter ending March 31, 2021; (vii) a true and correct copy of (A) the Organization Documents of each Loan Party and an incumbency certificate with respect to any Loan Parties’ officers executing any of the Loan Documents on the Closing Date, certified by a Responsible Officer, (B) resolutions of the board of directors (or an authorized committee thereof), the manager, general partner or equivalent governing body of each Loan Party authorizing each Loan Document to which such Loan Party is party and the Transactions, certified by a Responsible Officer and (C) evidence as of a recent date that each Loan Party is validly existing, in good standing (or equivalent standard) in the jurisdiction of its organization and (except as waived by the Administrative Agent in its discretion) qualified in each other jurisdiction where the failure to be qualified could reasonably be expected to result in a Material Adverse Effect; (viii) certificates attesting to the Solvency of the Borrowing Agent and its Subsidiaries and each other Loan Party both before and after giving effect to the Transactions, from a Responsible Officer; (ix) a certificate signed by a Responsible Officer of the Borrowing Agent certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or condition since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; (x) such financial, business and other information regarding the Borrowing Agent and its Subsidiaries as the Lenders shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans and Multiemployer Plans, capital leases, collective bargaining agreements and other arrangements with employees; (xi) such legal opinions regarding the Loan Parties and the Loan Documents as may be reasonably requested by the Administrative Agent; (xii) the filing of negative pledges requested by the Administrative Agent with respect to real property interests of the Borrowers and their Subsidiaries; (xiii) certificates of insurance, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured or loss payee, as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral with lender’s loss payable and additional insured endorsements; and (xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer or any Lender reasonably may require. (b) At least five (5) Business Days prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party. (c) The Borrowers shall have delivered to the Administrative Agent evidence satisfactory to the Administrative Agent that all filings, recordings, and other actions the Administrative Agent deems necessary or advisable to establish, preserve and perfect the liens granted to the Administrative Agent for the benefit of the Secured Parties shall have been made or obtained. (d) There shall exist no action, suit, investigation, litigation or proceeding affecting the Borrowing Agent or any of its Subsidiaries or any other Loan Party pending or threatened before any Governmental Authority or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect, purports to affect the Transactions or any portion thereof or the ability of the Borrowing Agent or any of its Subsidiaries to perform their respective obligations under the Loan Documents, or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the Transactions. (e) All governmental authorizations, third party and shareholder consents necessary in connection with the Transactions shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect; all applicable waiting periods in connection with the Transactions shall have expired without any action being taken by any such Governmental Authority, third party or shareholder, and no Law shall be applicable in the judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the Transactions or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them. (f) The Administrative Agent and the Lenders shall have satisfactorily completed of a due diligence review of the Borrowing Agent and its Subsidiaries. (g) (i) All fees required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid, all of which fees and expenses may be paid contemporaneously with the initial Term Borrowing. (h) Unless waived by the Administrative Agent, the Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers and the Administrative Agent) all of which may be paid contemporaneously with or by using the initial Term Borrowing. (i) The Administrative Agent and Lenders shall have received all documentation and other information requested by the Administrative Agent and Lenders in order to comply with requirements of regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act. (j) Without limiting the generality of the provisions of Section 9.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

Conditions to the Initial Credit Extension. The obligation of the L/C Issuer and each Lender and, if applicable, each Issuing Bank, to make its fund the initial Credit Extension hereunder requested to be made by it on the Closing Date (and the occurrence of the Closing Date) is subject to satisfaction of the following conditions precedent: (a) The Administrative Agent’s receipt of the following, each of which shall be originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersits legal counsel: (i) executed counterparts of this Agreement and each other Loan Document (to the extent not previously delivered to the Administrative Agent)Agreement, sufficient in number for distribution to each the Administrative Agent, each Lender and the Borrowing AgentBorrower; (ii) to the extent not delivered pursuant to clause (i) above, a Note executed by the Borrowers Borrower in favor of each Lender requesting a NoteNote hereunder; (iii) evidence that the Collateral Documents (other than the Landlord Waivers) shall be effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a legal, valid and enforceable first security interest and Lien upon the Collateral, including, without limitation, (A) searches of UCC filings in the jurisdiction of organization or formation of each Loan Party, in each jurisdiction where a filing would need to be made in order to perfect the Administrative Agent’s security interest in the Collateral, and in each other jurisdiction requested Intercreditor Agreement duly executed by the Administrative Agent, (B) copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Liens permitted hereunder, and (C) proper UCC-1 financing statements in form appropriate for filing under the UCC and of each jurisdiction that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created therebyall parties thereto; (iv) a Committed Loan Notice; (v) the Financial Model and a pro forma balance sheet such certificates of Borrowing Agent and its Subsidiaries as resolutions or other action, incumbency certificates and/or other certificates of and for the Fiscal Quarter ending on March 31, 2021 reflecting the consolidated financial position of such Persons as of such date, adjusted to give effect (as if such events had occurred on such date) to (1) the making of the initial Credit Extensions on the Closing Date and (2) the payment of all legal, accounting and other fees related thereto to the extent known at the time of the preparation of such balance sheet; (vi) a draft of unaudited financial statements, including an income statement, balance sheet and cash flow statements, for the Fiscal Quarter ending March 31, 2021; (vii) a true and correct copy of (A) the Organization Documents Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and an incumbency certificate capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with respect to any Loan Parties’ officers executing any of this Agreement and the other Loan Documents on the Closing Date, certified by a Responsible Officer, (B) resolutions of the board of directors (or an authorized committee thereof), the manager, general partner or equivalent governing body of each Loan Party authorizing each Loan Document to which such Loan Party is party a party; (v) such documents and certifications as the Transactions, certified by a Responsible Officer and (C) Administrative Agent may reasonably require to evidence as of a recent date that each Loan Party is duly organized or formed, and that each of the Borrower and the Guarantors is validly existing, in good standing (or equivalent standard) and qualified to engage in business in the jurisdiction jurisdictions listed opposite its name on Schedule 4.01; (vi) a favorable opinion of its organization Xxxxxxxx & Xxxxx LLP and Xxxxxx Xxxxxxxx LLP, each special counsel to the Loan Parties, addressed to each Agent, each Arranger and each Lender, as to the matters set forth in Exhibit F (except which shall be allocated between such counsels) and such other matters concerning the Loan Parties and the Loan Documents as waived by the Administrative Agent may reasonably request; (vii) a certificate signed by a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in its discretionconnection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) qualified in each other jurisdiction where the failure to be qualified could reasonably be expected to result in a Material Adverse Effectstating that no such consents, licenses or approvals are so required; (viii) certificates attesting to the Solvency (A) a certificate signed by a Responsible Officer of the Borrowing Agent and its Subsidiaries and each other Loan Party both before and Borrower certifying that on the Closing Date after giving effect to the Transactions, from a Responsible Officerthe Borrower and its Subsidiaries will not have any Funded Indebtedness, other than Indebtedness described in clauses (a), (b), (c), (d), (e), (f), (g) and (h) of Section 7.03; (ix) a certificate signed by a Responsible Officer of the Borrowing Agent Borrower certifying (A) that the conditions specified in Sections 4.02(aSection 4.01(m) and (bn) have been satisfied, ; and (B) that there has been no event or condition circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; it being understood and agreed by the Administrative Agent and the Lenders that (based upon the information disclosed to the Administrative Agent prior to the date hereof, taken as a whole), as of December 6, 2006, there has been no Material Adverse Effect since December 31, 2005; (x) such financial, business and other information regarding a certificate signed by the Borrowing Agent and its Subsidiaries as chief financial officer of each of the Lenders shall have reasonably requested, including, without limitation, information Loan Parties certifying as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans the financial condition and Multiemployer Plans, capital leases, collective bargaining agreements Solvency of such Loan Party (after giving effect to the Transaction and other arrangements with employeesthe incurrence of Indebtedness related thereto); (xi) such legal opinions regarding the Loan Parties and the Loan Documents a Borrowing Base Certificate, dated as may be reasonably requested of November 30, 2006, certified by the Administrative Agentchief financial officer confirming that the Excess Availability on the Closing Date, after giving effect to all Credit Extensions to occur on such date, is greater than the Excess Availability Requirement; (xii) the filing of negative pledges requested by the Administrative Agent a Borrowing Request with respect to real property interests the Borrowing of Loans to be made on the Borrowers and their SubsidiariesClosing Date; (xiii) certificates of insurance, naming evidence that the Administrative Agent, on behalf of Existing Credit Agreement has been or concurrently with the Secured Parties, as an additional insured Closing Date is being terminated and all Liens securing obligations under the Existing Credit Agreement have been or loss payee, as concurrently with the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and properties of the Loan Parties that constitute Collateral with lender’s loss payable and additional insured endorsementsClosing Date are being released; and (xiv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, Agent or the L/C Issuer or any Lender Required Lenders reasonably may require. (b) At least five (5) Business Days prior to The Administrative Agent shall have received from each of the Closing DateLenders a Lender Addendum, any Loan Party that qualifies as a “legal entity customer” under executed and delivered by the Beneficial Ownership Regulation shall deliverAgents, to the Borrower and each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Partylisted on Schedule 2.01. (c) The Borrowers Holdings, the Borrower and the Subsidiaries shall have delivered to complied with all of the terms of the Fee Letter. All accrued fees and expenses of the Agents, the Arranger and the Lenders (including the fees and expenses of counsel for the Administrative Agent and the Lead Arranger and local counsel for the Lenders) shall have been paid. (d) The Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received (i) a completed Perfection Certificate for each Loan Party dated the Closing Date and signed by a Responsible Officer of such Loan Party, together with all attachments contemplated thereby, including the results of a search of the UCC (or equivalent) filings made with respect to such Loan Party in the jurisdictions contemplated by the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 7.01 or have been released and (ii) all filings, recordings, filing and other actions the Administrative Agent deems necessary or advisable to establish, preserve recording fees and perfect the liens granted to the Administrative Agent for the benefit of the Secured Parties taxes shall have been made or obtained. (d) There shall exist no action, suit, investigation, litigation or proceeding affecting the Borrowing Agent or any of its Subsidiaries or any other Loan Party pending or threatened before any Governmental Authority or arbitrator that (i) could be reasonably likely to have a Material Adverse Effect, purports to affect the Transactions or any portion thereof or the ability of the Borrowing Agent or any of its Subsidiaries to perform their respective obligations under the Loan Documents, or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the Transactionspaid. (e) All governmental authorizations, third party and shareholder consents necessary in connection with the Transactions The Agents shall have been obtained received reasonably satisfactory evidence that 100% of the Equity Interests and any other economic interests (“ownership interests”) in Holdings shall be owned by the Equity Investors and at least 90% of the ownership interests in Holdings (without giving effect to any unexercised options) shall be owned by the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect; all applicable waiting periods in connection with the Transactions shall have expired without any action being taken by any such Governmental AuthoritySponsor, third party or shareholderAdvent, and no Law Bear Xxxxxx Merchant Banking and its Affiliates, all ownership interests in the Borrower shall be applicable owned by Holdings and all ownership interests in the judgment Borrower’s subsidiaries shall be owned by the Borrower or one or more of the LendersBorrower’s subsidiaries, in each case that restrains, prevents or imposes materially adverse conditions upon the Transactions or the rights free and clear of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired other than Liens permitted by any of themSection 7.01. (f) The Agents shall have received reasonably satisfactory evidence of the simultaneous closing of the Term Loan Facility in accordance with its terms. The terms, conditions and provisions of the Term Loan Facility shall be reasonably satisfactory to the Agents. The Administrative Agent and the Lenders shall have satisfactorily completed of a due diligence review received copies of the Borrowing Agent Term Loan Facility, certified by a Responsible Officer of the Borrower as complete and its Subsidiariescorrect. (g) (i) All fees required of the information, taken as a whole, disclosed to the Agents and their Affiliates party to the Commitment Letter shall have been complete and correct in all material respects and all of the projections contained in the Pre-Commitment Information delivered to the Agents and such Affiliates shall have been prepared in good faith based upon assumptions believed to be paid reasonable at the time of preparation thereof; and (ii) there shall have been no change, occurrence, development or situation since December 31, 2005, and no information shall have been received or discovered by the Agents and such Affiliates regarding Holdings, the Borrower and the Subsidiaries or the Transaction after the date hereof, that either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, it being understood and agreed by the Administrative Agent and the Arrangers on or before Lenders that (based upon the Closing Date shall have been paid and (ii) all fees required to be paid information disclosed to the Lenders on Administrative Agent prior to the date hereof, taken as a whole), as of December 6, 2006, there has been no information received or before discovered by the Closing Date shall Agents that could reasonably be expected to have been paida Material Adverse Effect since December 31, all of which fees and expenses may be paid contemporaneously with the initial Term Borrowing2005. (h) Unless waived The Agents shall be reasonably satisfied with the amount, types and terms and conditions of all insurance maintained by the Borrower and the Subsidiaries, and the Lenders shall have received endorsements naming the Administrative Agent, on behalf of the Borrowers shall have paid Lenders, as an additional insured or loss payee, as the case may be, under all reasonable and documented out-of-pocket fees, charges and disbursements of counsel insurance policies to be maintained with respect to the Administrative Agent (directly to such counsel if requested by properties of the Administrative Agent) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers Borrower and the Administrative Agent) all Subsidiaries forming part of which may be paid contemporaneously with or by using the initial Term BorrowingCollateral. (i) The Administrative Agent and Lenders There shall not exist any action, suit, investigation or proceeding pending or threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have received all documentation and other information requested by the Administrative Agent and Lenders in order to comply with requirements of regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Acta Material Adverse Effect. (j) Without limiting All loans made by the generality Lenders to the Borrower or any of the provisions of Section 9.04, for purposes of determining its affiliates shall be in full compliance with the conditions specified in this Section 4.01Regulations U and X issued by the FRB. (k) The Closing Date shall have occurred on or before January 31, each Lender that has signed this Agreement 2007. (l) The Arranger and the Administrative Agent shall be deemed reasonably satisfied that (i) a commercial finance field exam with respect to have consented to, approved or accepted or the relevant Collateral to be satisfied withincluded in the Borrowing Base and the accounting systems, each document or other matter required thereunder to be consented to or approved by or acceptable or policies, accounts payable and procedures of the Borrower and (ii) an appraisal of the net orderly liquidation value of the Borrower’s Inventory in form and substance reasonably satisfactory to a Lender unless the Arranger and the Administrative Agent shall have received notice begun and the Borrower shall be cooperating fully with such audit and appraisal, including by providing access to its assets and the assets of its Subsidiaries. (m) The representations and warranties of Holdings, the Borrower and each other Loan Party contained in Article 5 or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the Closing Date. (n) No Default shall exist, or would result from such Lender prior to proposed Credit Extension or Extensions. The Borrowing Request submitted by the proposed Borrower on the Closing Date specifying its objection theretoshall be deemed to be a representation and warranty that the conditions specified in Sections 4.01(m) and (n) have been satisfied on and as of such date.