Funding Date. The obligations of the Lenders to make their respective Term Loans hereunder and the availability of the Revolving Facility shall become effective on the first date on which each of the following conditions is satisfied (or waived in accordance with Section 9.03) which date shall occur prior to July 10, 2015 (it being understood and agreed that to the extent the Funding Date does not occur on or prior to July 10, 2015, this Agreement and the Commitments of the Lenders shall automatically terminate without any further action by the Borrower, the Administrative Agent or any other person): (a) The Administrative Agent shall have received from each party hereto or thereto either a counterpart of this Agreement and each other Loan Document signed on behalf of such party or written evidence satisfactory to the Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of such party) that such party has signed a counterpart of this Agreement and each other Loan Document to which it is a party, including, without limitation, the Collateral Agreement and such other Loan Documents as the Administrative Agent or its counsel may have reasonably requested. (b) The Borrower has furnished to the Administrative Agent each of the following, with sufficient copies for the Lenders, all in form and substance satisfactory to the Administrative Agent and the Lenders: (i) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying that all of the representations in this Agreement are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the Funding Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such earlier date and no Default or Unmatured Default has occurred and is continuing or would result from the Advance of the Term Loans on the Funding Date; (ii) a duly executed Borrowing/Election Notice signed by an Authorized Officer of the Borrower. (iii) the written opinion of the Loan Parties’ counsel, addressed to the Administrative Agent, each Issuing Bank and the Lenders, in substantially a form and containing assumptions and qualifications acceptable to the Administrative Agent and its counsel; (iv) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying (A) that the Borrower is in pro forma compliance with the financial covenants set forth in Section 7.04 on the Funding Date, including computations demonstrating compliance in reasonable detail thereof; (B) as to the receipt by the Borrower of the proceeds of the Senior Notes in an amount that, together with the Term Loans made on the Funding Date, is not greater than $1,000,000,000; and (C) as to occurrence of the Spin Transaction; (v) the (A) Historical Information and (B) the financial projections of the Borrower and its Subsidiaries on a consolidated basis, covering fiscal years 2015 through 2018 (inclusive), in each case on a consolidated basis; (vi) a completed Perfection Certificate, dated the Funding Date and signed by an Authorized Officer of the Borrower; (vii) evidence that appropriate Uniform Commercial Code financing statements have been (or, on the Funding Date, will be) duly filed in such office or offices as may be necessary or, in the opinion of Administrative Agent, desirable to perfect the Administrative Agent’s Liens in and to the Collateral; (viii) copies of the Certificate of Incorporation of each Loan Party, together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of incorporation; (ix) copies, certified by the Secretary or Assistant Secretary of each of the Loan Parties, of its By-Laws and of its Board of Directors’ (or similar body) resolutions authorizing the execution of the Loan Documents entered into by it; (x) an incumbency certificate, executed by the Secretary or Assistant Secretary of each of the Loan Parties, which shall identify by name and title and bear the original or facsimile signature of the officers of the Loan Parties authorized to sign the Loan Documents and the officers of the Borrower authorized to make borrowings hereunder, upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the Borrower; (xi) a certificate in form and substance reasonably satisfactory to the Administrative Agent, signed by an Authorized Officer of the Borrower, attesting that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Spin Transaction, are Solvent; (xii) receipt by the Administrative Agent of updated Schedules 6.07, 6.08, 6.18, 7.03(a), 7.03(b), 7.03(d) and 7.03(i) to replace the corresponding Schedules and Annex attached hereto as of the Escrow Date in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, provided that the Lenders agree that such updated schedules shall be deemed to be satisfactory if such updated Schedules (i) do not differ from the corresponding Schedules attached hereto as of the Escrow Date in a manner that is material and adverse to the Lenders or (ii) are otherwise satisfactory to the Required Lenders (and any references to any such Schedules in this Credit Agreement shall thereafter refer to such Schedules as the same may have been updated pursuant to this Section 5.01(b)(xii). (c) (i) The Collateral and Guarantee Requirement shall have been satisfied (provided that, solely with respect to the matters expressly identified in Section 7.02(q), the satisfaction of the conditions set forth in this clause (c) shall not be required on the Funding Date, and shall not be a condition to the obligations of the Lenders to make Loans hereunder on the Funding Date, but shall be required to be accomplished in accordance with Section 7.02(q)) and (ii) the Administrative Agent shall have received satisfactory evidence that all steps have been taken to perfect security interests in the Collateral (including delivery of any certificated Equity Interests and other physical, pledged collateral). (d) The Administrative Agent shall have received evidence that the insurance required by Section 7.02(e) is in effect, together with endorsements naming the Administrative Agent, for the benefit of the Lenders, Issuing Banks and Swing Line Lender, as additional insured and loss payee thereunder to the extent required under Section 7.02(e). (e) Since September 30, 2014, no fact, event or circumstance has occurred that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. (f) The Administrative Agent shall have received the results of a recent Lien and judgment search in each relevant jurisdiction with respect to the Loan Parties, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted under Section 7.03(b). (g) The Administrative Agent shall have received all documentation and other information reasonably requested by each Lender that is required for compliance with the Patriot Act or other “know your customer” and anti-money laundering rules and regulations (which requested information shall have been received at least five (5) Business Days prior to the Funding Date to the extent requested by the Lenders at least ten (10) Business Days prior to the Funding Date). (h) The Administrative Agent (for the benefit of itself and the other parties entitled thereto) and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Funding Date (including fees for the account of the Lenders and fees, disbursements and charges of counsel to the Administrative Agent and the Arrangers), including to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date and such notice shall be conclusive and binding (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 2 contracts
Sources: Credit Agreement (Energizer SpinCo, Inc.), Credit Agreement (Energizer Holdings Inc)
Funding Date. The obligations of the Lenders to make their respective Term Loans hereunder conditions precedent set forth in Sections 5.01 through 5.21 shall have been satisfied, and the availability of the Revolving Facility shall become effective on the first date on which each of the following conditions is satisfied (or waived in accordance with Section 9.03) which date shall occur prior to July 10, 2015 (it being understood and agreed that to the extent the Funding Date does not occur shall have occurred, on or prior to July 10, 2015, this Agreement and the Commitments Funding Termination Date. In determining the satisfaction of the Lenders conditions specified in this Section 5, (x) to the extent any item is required to be satisfactory to any Lender, such item shall automatically terminate without any further action by the Borrower, be deemed satisfactory to each Lender which has not notified the Administrative Agent in writing prior to the occurrence of the Funding Date that the respective item or matter does not meet its satisfaction and (y) in determining whether any other person):
(a) The Administrative Agent shall Lender is aware of any fact, condition or event that has occurred and which would reasonably be expected to have received from a Material Adverse Effect or a material adverse effect of the type described in Section 5.08, each party hereto or thereto either a counterpart of this Agreement and each other Loan Document signed on behalf of such party or written evidence satisfactory to Lender which has not notified the Administrative Agent (which may include facsimile or electronic transmission in writing prior to the occurrence of a signed signature page the Funding Date of such party) that fact, condition or event shall be deemed not to be aware of any such party has signed a counterpart of this Agreement and each other Loan Document to which it is a partyfact, including, without limitation, condition or event on the Collateral Agreement and such other Loan Documents as Funding Date. Upon the Administrative Agent or its counsel may Agent’s good faith determination that the conditions specified in this Section 5 have reasonably requested.
been met (b) The Borrower has furnished after giving effect to the Administrative Agent preceding sentence), then the Funding Date shall have been deemed to have occurred, regardless of any subsequent determination that one or more of the conditions thereto had not been met (although the occurrence of the Funding Date shall not release the Borrowers from any liability for failure to satisfy one or more of the applicable conditions contained in this Section 5). The acceptance of the Loans shall constitute a representation and warranty by each of the following, with sufficient copies for the Lenders, all in form and substance satisfactory Borrowers to the Administrative Agent and each of the Lenders:
(i) a certificateLenders that all the conditions specified in this Section 5 are satisfied as of that time. All of the Notes, certificates, legal opinions and other documents and papers referred to in form and substance satisfactory this Section 5, unless otherwise specified, shall be delivered to the Administrative Agent signed by an Authorized Officer of at the Borrower, certifying that all of Notice Office for the representations in this Agreement are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the Funding Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such earlier date and no Default or Unmatured Default has occurred and is continuing or would result from the Advance of the Term Loans on the Funding Date;
(ii) a duly executed Borrowing/Election Notice signed by an Authorized Officer of the Borrower.
(iii) the written opinion of the Loan Parties’ counsel, addressed to the Administrative Agent, each Issuing Bank and the Lenders, in substantially a form and containing assumptions and qualifications acceptable to the Administrative Agent and its counsel;
(iv) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying (A) that the Borrower is in pro forma compliance with the financial covenants set forth in Section 7.04 on the Funding Date, including computations demonstrating compliance in reasonable detail thereof; (B) as to the receipt by the Borrower of the proceeds of the Senior Notes in an amount that, together with the Term Loans made on the Funding Date, is not greater than $1,000,000,000; and (C) as to occurrence of the Spin Transaction;
(v) the (A) Historical Information and (B) the financial projections of the Borrower and its Subsidiaries on a consolidated basis, covering fiscal years 2015 through 2018 (inclusive), in each case on a consolidated basis;
(vi) a completed Perfection Certificate, dated the Funding Date and signed by an Authorized Officer of the Borrower;
(vii) evidence that appropriate Uniform Commercial Code financing statements have been (or, on the Funding Date, will be) duly filed in such office or offices as may be necessary or, in the opinion of Administrative Agent, desirable to perfect the Administrative Agent’s Liens in and to the Collateral;
(viii) copies of the Certificate of Incorporation of each Loan Party, together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of incorporation;
(ix) copies, certified by the Secretary or Assistant Secretary account of each of the Loan PartiesLenders and, of its By-Laws and of its Board of Directors’ (except for the Notes, in sufficient counterparts or similar body) resolutions authorizing the execution of the Loan Documents entered into by it;
(x) an incumbency certificate, executed by the Secretary or Assistant Secretary of copies for each of the Loan Parties, which shall identify by name Lenders and title and bear the original or facsimile signature of the officers of the Loan Parties authorized to sign the Loan Documents and the officers of the Borrower authorized to make borrowings hereunder, upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(xi) a certificate in form and substance reasonably satisfactory to the Administrative Agent, signed by an Authorized Officer of the Borrower, attesting that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Spin Transaction, are Solvent;
(xii) receipt by the Administrative Agent of updated Schedules 6.07, 6.08, 6.18, 7.03(a), 7.03(b), 7.03(d) and 7.03(i) to replace the corresponding Schedules and Annex attached hereto as of the Escrow Date in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders, provided that the Lenders agree that such updated schedules shall be deemed to be satisfactory if such updated Schedules (i) do not differ from the corresponding Schedules attached hereto as of the Escrow Date in a manner that is material and adverse to the Lenders or (ii) are otherwise satisfactory to the Required Lenders (and any references to any such Schedules in this Credit Agreement shall thereafter refer to such Schedules as the same may have been updated pursuant to this Section 5.01(b)(xii).
(c) (i) The Collateral and Guarantee Requirement shall have been satisfied (provided that, solely with respect to the matters expressly identified in Section 7.02(q), the satisfaction of the conditions set forth in this clause (c) shall not be required on the Funding Date, and shall not be a condition to the obligations of the Lenders to make Loans hereunder on the Funding Date, but shall be required to be accomplished in accordance with Section 7.02(q)) and (ii) the Administrative Agent shall have received satisfactory evidence that all steps have been taken to perfect security interests in the Collateral (including delivery of any certificated Equity Interests and other physical, pledged collateral).
(d) The Administrative Agent shall have received evidence that the insurance required by Section 7.02(e) is in effect, together with endorsements naming the Administrative Agent, for the benefit of the Lenders, Issuing Banks and Swing Line Lender, as additional insured and loss payee thereunder to the extent required under Section 7.02(e).
(e) Since September 30, 2014, no fact, event or circumstance has occurred that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(f) The Administrative Agent shall have received the results of a recent Lien and judgment search in each relevant jurisdiction with respect to the Loan Parties, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted under Section 7.03(b).
(g) The Administrative Agent shall have received all documentation and other information reasonably requested by each Lender that is required for compliance with the Patriot Act or other “know your customer” and anti-money laundering rules and regulations (which requested information shall have been received at least five (5) Business Days prior to the Funding Date to the extent requested by the Lenders at least ten (10) Business Days prior to the Funding Date).
(h) The Administrative Agent (for the benefit of itself and the other parties entitled thereto) and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Funding Date (including fees for the account of the Lenders and fees, disbursements and charges of counsel to the Administrative Agent and the Arrangers), including to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date and such notice shall be conclusive and binding (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 2 contracts
Sources: Credit Agreement (SAExploration Holdings, Inc.), Credit Agreement (SAExploration Holdings, Inc.)
Funding Date. The (A) If the Hotspot Acquisition is consummated on the Funding Date, the obligations of the B-1 Term Loan Lenders and the Incremental B-2 Term Loan Lenders, respectively, to make their respective Term Loans hereunder and such Borrowings, are subject to the availability satisfaction (or waiver by the Administrative Agent) of the Revolving Facility shall become effective on the first date on which each of the following conditions is satisfied (or waived in accordance with Section 9.03) which date shall occur prior to July 10, 2015 (it being understood and agreed that to the extent the Funding Date does not occur on or prior to July 10, 2015, this Agreement and the Commitments of the Lenders shall automatically terminate without any further action by the Borrower, the Administrative Agent or any other person):precedent:
(a) The Administrative Agent Acquisition shall have received from each party hereto or thereto either a counterpart been consummated in all material respects in accordance with the terms of this Agreement and each other Loan Document signed on behalf of such party or written evidence satisfactory to the Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of such party) that such party has signed a counterpart of this Agreement and each other Loan Document to which it is a party, including, without limitation, the Collateral Agreement and such other Loan Documents as the Administrative Agent or its counsel may have reasonably requestedPurchase Agreement.
(b) The Borrower has furnished to the Administrative Agent each of the following, with sufficient copies for the Lenders, all in form and substance satisfactory to the Administrative Agent and the Lenders:
(i) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying that all of the representations in this Specified Purchase Agreement are Representations shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the Funding Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they Specified Representations shall be true and correct in all material respects (except that in the case of any Specified Purchase Agreement Representation or any Specified Representation which expressly relates to a given date or period, such representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such earlier date and no Default or Unmatured Default has occurred and is continuing or would result from the Advance of the Term Loans on the Funding Date;
(ii) a duly executed Borrowing/Election Notice signed by an Authorized Officer of the Borrower.
(iii) the written opinion of the Loan Parties’ counsel, addressed to the Administrative Agent, each Issuing Bank and the Lenders, in substantially a form and containing assumptions and qualifications acceptable to the Administrative Agent and its counsel;
(iv) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying (A) that the Borrower is in pro forma compliance with the financial covenants set forth in Section 7.04 on the Funding Date, including computations demonstrating compliance in reasonable detail thereof; (B) as to the receipt by the Borrower of the proceeds of the Senior Notes in an amount that, together with the Term Loans made on the Funding Date, is not greater than $1,000,000,000; and (C) as to occurrence of the Spin Transaction;
(v) the (A) Historical Information and (B) the financial projections of the Borrower and its Subsidiaries on a consolidated basis, covering fiscal years 2015 through 2018 (inclusive), in each case on a consolidated basis;
(vi) a completed Perfection Certificate, dated the Funding Date and signed by an Authorized Officer of the Borrower;
(vii) evidence that appropriate Uniform Commercial Code financing statements have been (or, on the Funding Date, will be) duly filed in such office or offices as may be necessary or, in the opinion of Administrative Agent, desirable to perfect the Administrative Agent’s Liens in and to the Collateral;
(viii) copies of the Certificate of Incorporation of each Loan Party, together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of incorporation;
(ix) copies, certified by the Secretary or Assistant Secretary of each of the Loan Parties, of its By-Laws and of its Board of Directors’ (or similar body) resolutions authorizing the execution of the Loan Documents entered into by it;
(x) an incumbency certificate, executed by the Secretary or Assistant Secretary of each of the Loan Parties, which shall identify by name and title and bear the original or facsimile signature of the officers of the Loan Parties authorized to sign the Loan Documents and the officers of the Borrower authorized to make borrowings hereunder, upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(xi) a certificate in form and substance reasonably satisfactory to the Administrative Agent, signed by an Authorized Officer of the Borrower, attesting that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Spin Transaction, are Solvent;
(xii) receipt by the Administrative Agent of updated Schedules 6.07, 6.08, 6.18, 7.03(a), 7.03(b), 7.03(d) and 7.03(i) to replace the corresponding Schedules and Annex attached hereto material respects as of the Escrow Date in form and substance reasonably satisfactory to respective date or for the Administrative Agent and the Lendersrespective period, provided that the Lenders agree that such updated schedules shall be deemed to be satisfactory if such updated Schedules (i) do not differ from the corresponding Schedules attached hereto as of the Escrow Date in a manner that is material and adverse to the Lenders or (ii) are otherwise satisfactory to the Required Lenders (and any references to any such Schedules in this Credit Agreement shall thereafter refer to such Schedules as the same case may have been updated pursuant to this Section 5.01(b)(xiibe).
(c) (i) The Collateral After giving effect to the application of the proceeds of the Term B-1 Term Loans and Guarantee Requirement the Incremental B-2 Term Loans, the Target and its subsidiaries shall have been satisfied (provided thatoutstanding no third-party indebtedness for borrowed money, solely with respect to the matters expressly identified in Section 7.02(q), the satisfaction of the conditions set forth in this clause (c) shall not be required on the Funding Date, and shall not be a condition to the obligations of the Lenders to make Loans hereunder on the Funding Date, but shall be required other than indebtedness permitted to be accomplished in accordance with Section 7.02(q)) and (ii) the outstanding under this Agreement. The Administrative Agent shall have received reasonably satisfactory evidence that of repayment of all steps indebtedness to be repaid on the Funding Date and of the discharge of all indebtedness and liens other than indebtedness and liens permitted to remain outstanding under this Agreement (or customary arrangements for such repayment or discharge shall have been taken to perfect security interests in the Collateral (including delivery of any certificated Equity Interests and other physical, pledged collateralmade).
(d) The (i) Borrower shall have paid the Amendment Fees (as defined the Amendment) and (ii) Administrative Agent shall have received evidence that all fees (including the insurance required Funding Fees) and other amounts due and payable by Section 7.02(e) is in effectany Loan Party on or prior to the Funding Date, together with endorsements naming the Administrative Agentincluding, for the benefit of the Lenders, Issuing Banks and Swing Line Lender, as additional insured and loss payee thereunder to the extent invoiced at least three (3) business days prior to the Funding Date., reimbursement or payment of all reasonable out-of-pocket expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by the Borrower under Section 7.02(e)the JPM Fee Letter and any Loan Document.
(e) Since September 30, 2014, no factthe Acquired Business and its Transferred Subsidiaries (as defined in the Acquisition Agreement), event taken as a whole, have not suffered any adverse change to their respective businesses, assets, operations or circumstance has occurred that has had or could reasonably be expected to havefinancial position, either except such changes which have not had, individually or in the aggregate, a Company Material Adverse Effect.
. For purposes of this clause (f) The Administrative Agent e), “Company Material Adverse Effect” shall have received the results of a recent Lien and judgment search in each relevant jurisdiction with respect to the Loan Parties, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted under Section 7.03(b).
(g) The Administrative Agent shall have received all documentation and other information reasonably requested by each Lender that is required for compliance with the Patriot Act or other “know your customer” and anti-money laundering rules and regulations (which requested information shall have been received at least five (5) Business Days prior to the Funding Date to the extent requested by the Lenders at least ten (10) Business Days prior to the Funding Date).
(h) The Administrative Agent (for the benefit of itself and the other parties entitled thereto) and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Funding Date (including fees for the account of the Lenders and fees, disbursements and charges of counsel to the Administrative Agent and the Arrangers), including to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date and such notice shall be conclusive and binding (and, meaning set forth in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time)Purchase Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Bats Global Markets, Inc.), Credit Agreement (BATS Global Markets, Inc.)
Funding Date. The obligations of the Lenders to make their respective Term Loans hereunder and the availability of the Revolving Facility Issuing Banks to issue Letters of Credit hereunder shall not become effective on until the first date on which each of the following conditions is satisfied (or waived in accordance with Section 9.03) which date shall occur prior to July 10, 2015 (it being understood and agreed that to the extent the Funding Date does not occur on or prior to July 10, 2015, this Agreement and the Commitments of the Lenders shall automatically terminate without any further action by the Borrower, the Administrative Agent or any other person9.02):
(a) The Administrative Agent shall have received from each party hereto or thereto either (i) a counterpart of this Agreement and each other Loan Document (excluding the Mortgages, which shall be delivered in accordance with Section 5.13) signed on behalf of such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include facsimile transmission or other electronic transmission imaging of a signed signature page of such partyeach Loan Document) that such party has signed a counterpart of this Agreement and each other Loan Document (excluding the Mortgages, which shall be delivered in accordance with Section 5.13).
(b) The Administrative Agent shall have received a favorable written opinion (addressed to which it is a partythe Administrative Agent and the Lenders) of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, including, without limitationcounsel for Holdings, the Collateral Agreement Borrower and the Restricted Subsidiaries, and ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, Indiana counsel for Holdings, the Borrower and the Restricted Subsidiaries, (i) dated as of the Funding Date and (ii) covering such other matters relating to the Loan Parties or the Loan Documents as the Administrative Agent shall reasonably request. Each of Holdings and the Borrower hereby requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may have reasonably requested.
(b) The Borrower has furnished request relating to the Administrative Agent each of the followingorganization, with sufficient copies for the Lenders, all in form existence and substance satisfactory to the Administrative Agent and the Lenders:
(i) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying that all of the representations in this Agreement are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the Funding Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such earlier date and no Default or Unmatured Default has occurred and is continuing or would result from the Advance of the Term Loans on the Funding Date;
(ii) a duly executed Borrowing/Election Notice signed by an Authorized Officer of the Borrower.
(iii) the written opinion of the Loan Parties’ counsel, addressed to the Administrative Agent, each Issuing Bank and the Lenders, in substantially a form and containing assumptions and qualifications acceptable to the Administrative Agent and its counsel;
(iv) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying (A) that the Borrower is in pro forma compliance with the financial covenants set forth in Section 7.04 on the Funding Date, including computations demonstrating compliance in reasonable detail thereof; (B) as to the receipt by the Borrower of the proceeds of the Senior Notes in an amount that, together with the Term Loans made on the Funding Date, is not greater than $1,000,000,000; and (C) as to occurrence of the Spin Transaction;
(v) the (A) Historical Information and (B) the financial projections of the Borrower and its Subsidiaries on a consolidated basis, covering fiscal years 2015 through 2018 (inclusive), in each case on a consolidated basis;
(vi) a completed Perfection Certificate, dated the Funding Date and signed by an Authorized Officer of the Borrower;
(vii) evidence that appropriate Uniform Commercial Code financing statements have been (or, on the Funding Date, will be) duly filed in such office or offices as may be necessary or, in the opinion of Administrative Agent, desirable to perfect the Administrative Agent’s Liens in and to the Collateral;
(viii) copies of the Certificate of Incorporation good standing of each Loan Party, together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of incorporation;
(ix) copies, certified by the Secretary or Assistant Secretary of each authorization of the Loan Parties, of its By-Laws Transactions and of its Board of Directors’ (or similar body) resolutions authorizing the execution of the Loan Documents entered into by it;
(x) an incumbency certificate, executed by the Secretary or Assistant Secretary of each of the Loan Parties, which shall identify by name and title and bear the original or facsimile signature of the officers of any other legal matters relating to the Loan Parties authorized to sign or the Loan Documents and the officers of the Borrower authorized to make borrowings hereunderDocuments, upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(xi) a certificate in form and substance reasonably satisfactory to the Administrative Agent, signed by an Authorized Officer of the Borrower, attesting that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Spin Transaction, are Solvent;
(xii) receipt by the Administrative Agent of updated Schedules 6.07, 6.08, 6.18, 7.03(a), 7.03(b), 7.03(d) and 7.03(i) to replace the corresponding Schedules and Annex attached hereto as of the Escrow Date all in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, provided that the Lenders agree that such updated schedules shall be deemed to be satisfactory if such updated Schedules (i) do not differ from the corresponding Schedules attached hereto as of the Escrow Date in a manner that is material and adverse to the Lenders or (ii) are otherwise satisfactory to the Required Lenders (and any references to any such Schedules in this Credit Agreement shall thereafter refer to such Schedules as the same may have been updated pursuant to this Section 5.01(b)(xii).
(c) (i) The Collateral and Guarantee Requirement shall have been satisfied (provided that, solely with respect to the matters expressly identified in Section 7.02(q), the satisfaction of the conditions set forth in this clause (c) shall not be required on the Funding Date, and shall not be a condition to the obligations of the Lenders to make Loans hereunder on the Funding Date, but shall be required to be accomplished in accordance with Section 7.02(q)) and (ii) the Administrative Agent shall have received satisfactory evidence that all steps have been taken to perfect security interests in the Collateral (including delivery of any certificated Equity Interests and other physical, pledged collateral)its counsel.
(d) The Administrative Agent shall have received evidence that a certificate, dated the insurance required Funding Date and signed by Section 7.02(e) is in effect, together with endorsements naming a Financial Officer or the Administrative Agent, for the benefit President or a Vice President of the LendersBorrower, Issuing Banks confirming compliance with the conditions set forth in paragraphs (a) and Swing Line Lender(b) of Section 4.03 (for purposes of the conditions set forth in paragraphs (a) and (b) of Section 4.03, as additional insured and loss payee thereunder after giving effect to the extent required under Section 7.02(econsummation of the Spin-Off).
(e) Since September 30, 2014, no fact, event or circumstance has occurred that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(f) The Administrative Agent shall have received the results of a recent Lien and judgment search in each relevant jurisdiction with respect to the Loan Parties, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted under Section 7.03(b).
(g) The Administrative Agent shall have received all documentation and other information reasonably requested by each Lender that is required for compliance with the Patriot Act or other “know your customer” and anti-money laundering rules and regulations (which requested information shall have been received at least five (5) Business Days prior to the Funding Date to the extent requested by the Lenders at least ten (10) Business Days prior to the Funding Date).
(h) The Administrative Agent (for the benefit of itself and the other parties entitled thereto) and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Funding Date (including fees for the account of the Lenders and feesDate, disbursements and charges of counsel to the Administrative Agent and the Arrangers)including, including to the extent invoicedinvoiced at least two Business Days prior to the Funding Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including fees, charges and disbursements of counsel) incurred between the Effective Date and the Funding Date required to be reimbursed or paid by any Loan Party hereunder, under any other Loan Document or under any other agreement entered into by any of the Arrangers, the Administrative Agent and the Lenders, on the one hand, and any of the Loan Parties, on the other hand; provided that such amounts may be offset against the proceeds of the Tranche A Term Loans.
(f) The Collateral and Guarantee Requirement shall have been satisfied to the extent applicable and the Administrative Agent, on behalf of the Secured Parties, shall have a security interest in the Collateral of the type and priority described in each Security Document, except as otherwise set forth in the Collateral and Guarantee Requirement or Section 5.13. The Administrative Agent shall have received a completed Perfection Certificate dated the Funding Date and signed by a Financial Officer or legal officer of each of Holdings and the Borrower, together with all attachments contemplated thereby, including (i) the results of a bring-down search of the Uniform Commercial Code (or equivalent) filings and Federal and State tax filings made with respect to the Loan Parties in the jurisdictions contemplated by the Perfection Certificate, in each case that are reasonably requested by the Administrative Agent, (ii) copies of the financing statements (or similar documents) disclosed by such search and (iii) evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or similar documents) are permitted by Section 6.02 or have been or will contemporaneously with the initial funding of the Loans on the Funding Date be released or terminated.
(g) The Administrative Agent shall have received evidence that the flood insurance required by Section 5.07 is in effect.
(h) The Lenders shall have received a certificate from a Financial Officer of Holdings, substantially in the form of Exhibit J, certifying as to the solvency of Holdings and its Restricted Subsidiaries as of the Spin-Off Date on a consolidated basis after giving effect to the Transactions and the other transactions contemplated hereby.
(i) The Transactions shall have been consummated, or shall be consummated substantially concurrently with the initial Borrowing, in accordance with applicable law in all material respects and, in all material respects, consistent with the information set forth in the Form 10 (it being understood that the Spin-Off shall be deemed to have been consummated substantially concurrently with the initial Borrowing to the extent that the Spin-Off occurs promptly after 12:00 a.m., New York City time, on the first calendar day following the date on which the initial Borrowing occurs).
(j) The Lenders shall have received a copy of the most recently available version of each material Spin-Off Document and each other Spin-Off Document requested by the Administrative Agent, each certified by a Financial Officer of Holdings as being complete and correct. The terms of the Distribution Agreement shall not contain any modifications from the information set forth in the Form 10, as filed with and declared effective by the SEC and as the same may be amended, supplemented or modified on or prior to the date that is three Business Days prior to the Effective Date, that are material and adverse to the rights or interests of the Lenders without the prior written approval of the Administrative Agent (it being understood that the inclusion of information in the Distribution Agreement for which there is a placeholder in the Form 10, such as the distribution ratio and the distribution and record, dates, shall not be deemed to be material and adverse to the rights or interests of the Lenders), and no term or condition of the Distribution Agreement or any related agreement shall have been waived, amended or otherwise modified in a manner material and adverse to the rights or interests of the Lenders without the prior written approval of the Administrative Agent.
(k) All conditions to the Spin-Off set forth in the Form 10 and in the Distribution Agreement (other than the funding of the Loans) shall have been satisfied or shall be satisfied substantially concurrently with the initial Borrowing (or shall have been waived, amended or otherwise modified in a manner not material and adverse to the rights or interests of the Lenders without the prior written approval of the Administrative Agent), it being understood that such conditions shall be deemed to have been satisfied substantially concurrently with the initial Borrowing to the extent that such conditions are satisfied promptly after 12:00 a.m., New York City time, on the first calendar day following the date on which the initial Borrowing occurs. There shall be no material payments or distributions by Holdings or any of its subsidiaries to Exelis or any of its subsidiaries (other than Holdings and its subsidiaries) in connection with the Spin-Off, other than the payment of the Funding Date Distribution and, if applicable, the Working Capital Adjustment.
(l) The Lenders that have executed a non-reliance letter in form and substance satisfactory to the applicable solvency opinion provider shall have received a copy of the solvency opinion delivered to the Board of Directors of Exelis (or, if applicable, of Holdings or the Borrower) in connection with the Spin-Off (provided that the Administrative Agent and the Lenders shall not be required to be addressees or beneficiaries of such opinion).
(m) Immediately after giving effect to the Transactions and the other transactions contemplated hereby, none of Holdings, the Borrower hereunderor any Restricted Subsidiary shall have outstanding any Indebtedness, other than (i) Indebtedness incurred under the Loan Documents and (ii) other Indebtedness permitted under Section 6.01.
(n) The Borrower shall have delivered to the Administrative Agent the notice required by Section 2.03.
(o) On the Funding Date, immediately after giving effect to the Transactions (other than the Spin-Off), Holdings, the Borrower and the Subsidiaries (determined after giving pro forma effect to the Spin-Off) will have cash on hand of not less than $25,000,000.
(p) The Borrower shall have received written notice from the Defense Contract Management Agency, either through the Divisional Administrative Contracting Officer (DACO) or her delegate, that its accounting system is approved (i.e., is an “acceptable accounting system” as defined in the Department of Defense Federal Acquisition Regulation Supplement (“DFARS”) § 252.242-7006) and that the withholds applied on April 30, 2014, under DFARS § 252.242-7005 have been discontinued.
(q) No action or event shall have occurred during the period from and including the Effective Date to and including the Funding Date which would have constituted a non-compliance by Holdings or the Borrower with each of the covenants set forth in Articles V (other than Sections 5.01, 5.03, the second sentence of 5.07, 5.10, 5.11, 5.12, 5.13 and 5.15) and VI (other than Sections 6.12 and 6.13 and provided that, solely for purposes of this clause (q), transactions with Exelis or any of its subsidiaries under or in connection with the Transactions or conducted consistent with prior practice shall not be deemed to constitute non-compliance by Holdings or the Borrower with the covenant set forth in Section 6.09) of this Agreement as if such covenants had been effective from and including the Effective Date (it being understood, for the avoidance of doubt, that the covenants in Articles V and VI of this Agreement shall not be effective prior to the Funding Date); provided that if any such action or event shall have occurred with respect to any such covenant, the condition precedent in this paragraph (q) shall nonetheless be satisfied if such action or event has been cured with respect to such covenant if, as of the Funding Date, Holdings and the Borrower are in compliance with such covenant.
(r) The Borrower shall have delivered an executed promissory note to each Lender that has requested a promissory note pursuant to Section 2.09(c) prior to the Funding Date. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date Date, and such notice shall be conclusive and binding (and, in binding. Notwithstanding the event such conditions are not so satisfied or waivedforegoing, the Commitments obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall terminate not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at such or prior to 5:00 p.m., New York City time), on the date that is 150 days after the Effective Date.
Appears in 2 contracts
Sources: Credit Agreement (Vectrus, Inc.), Credit Agreement (Vectrus, Inc.)
Funding Date. The obligations obligation of the Lenders to make their respective the Term Loans hereunder and Loan Advance is subject to the availability satisfaction of the Revolving Facility shall become effective on the first date on which each of the following conditions is satisfied (or waived in accordance with Section 9.03) which date shall occur prior to July 10, 2015 (it being understood and agreed that to the extent the Funding Date does not occur on or prior to July 10May 31, 2015, this Agreement and the Commitments of the Lenders shall automatically terminate without any further action by the Borrower2021 (such date, the Administrative Agent or any other person“Funding Date”):
(a) The Administrative Agent and the Lenders shall have received from each party hereto or thereto either a counterpart of this Agreement and each other Loan Document signed on behalf of such party or written evidence satisfactory to the Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of such party) that such party has signed a counterpart of this Agreement and each other Loan Document to which it is a party, including, without limitation, the Collateral Agreement and such other Loan Documents as the Administrative Agent or its counsel may have reasonably requested.
(b) The Borrower has furnished to the Administrative Agent each of the following, with sufficient copies for the Lenders, all in form and substance satisfactory to the Administrative Agent and the Lenders:
(i) executed copies of the Reaffirmation Agreement and any other Loan Document executed and delivered by each applicable Loan Party;
(ii) an executed copy of the FP Stock Grant Agreement, executed and delivered by all the parties thereto;
(iii) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized certificate from a Responsible Officer of the Borrowereach Loan Party, certifying that all of the representations in this Agreement are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and dated as of the Funding Date, except Date to the extent effect that such (1) all representations and warranties specifically refer to an earlier date, set forth in which case they this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the Funding Date (except that to the extent any such representation and or warranty that is qualified as by materiality or reference to “materiality” or “Material Adverse Effect” , in which case such representation or warranty shall be true and correct in all respects) ), except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations or warranties shall be true and correct in all material respects as of such earlier date (except to the extent any such representation or warranty is qualified by materiality or reference to Material Adverse Effect, in which case such representation or warranty shall be true, correct and complete in all respects as of such earlier date), (2) each Loan Party is in compliance with all of the terms and provisions set forth herein and in each other Loan Document on its part to be observed or performed, (3) no Event of Default or Unmatured Default shall have occurred and be continuing, (4) since the Closing Date, no event has occurred or condition arisen, either individually or in the aggregate, that could reasonably be expected to have a Material Adverse Effect, (5) there have been no changes to the incumbency, resolutions and is continuing or would result from the Advance Organizational Documents of the Term Loans such Loan Party delivered pursuant to Section 4.1(a)(iii) on the Funding Date;
Closing Date or attached to this certificate are any updates to the foregoing, (ii6) attached thereto is a duly executed Borrowing/Election Notice signed by an Authorized Officer certificate of the Borrower.
good standing for such Loan Party from its jurisdiction of incorporation and (iii7) the written opinion of the Loan Parties’ counselconditions set forth in Section 4.2(c), addressed to the Administrative Agent, each Issuing Bank (d) and the Lenders, in substantially a form and containing assumptions and qualifications acceptable to the Administrative Agent and its counsel(j) have been satisfied;
(iv) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer flow of the Borrower, certifying (A) that the Borrower is in pro forma compliance with the financial covenants set forth in Section 7.04 on the Funding Date, including computations demonstrating compliance in reasonable detail thereof; (B) as to the receipt by the Borrower of the proceeds of the Senior Notes in an amount that, together with the Term Loans made on the Funding Date, is not greater than $1,000,000,000; and (C) as to occurrence of the Spin Transaction;
(v) the (A) Historical Information and (B) the financial projections of the Borrower and its Subsidiaries on a consolidated basis, covering fiscal years 2015 through 2018 (inclusive), in each case on a consolidated basis;
(vi) a completed Perfection Certificatefunds agreement, dated as of the Funding Date and signed executed by an Authorized Officer of the Borrower;
(vii) evidence that appropriate Uniform Commercial Code financing statements have been (or, on the Funding Date, will be) duly filed in such office or offices as may be necessary or, in the opinion of Administrative Borrower and Agent, desirable to perfect the Administrative Agent’s Liens in and to the Collateral;
(viii) copies of the Certificate of Incorporation of each Loan Party, together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of incorporation;
(ix) copies, certified by the Secretary or Assistant Secretary of each of the Loan Parties, of its By-Laws and of its Board of Directors’ (or similar body) resolutions authorizing the execution of the Loan Documents entered into by it;
(x) an incumbency certificate, executed by the Secretary or Assistant Secretary of each of the Loan Parties, which shall identify by name and title and bear the original or facsimile signature of the officers of the Loan Parties authorized to sign the Loan Documents and the officers of the Borrower authorized to make borrowings hereunder, upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(xi) a certificate in form and substance reasonably satisfactory to the Administrative Agent, signed by an Authorized Officer in connection with the disbursement of the proceeds of the Term Loan Advance;
(v) a legal opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, US counsel to the Loan Parties, in form and substance reasonably acceptable to the Lenders;
(vi) an Advance Request for the Term Loan Advance as required by Section 2.1(b), duly executed by Borrower’s Chief Executive Officer or Chief Financial Officer; and
(vii) any other documents Agent and/or the Lenders may reasonably request.
(b) On the Funding Date, attesting that the Borrower and its SubsidiariesSubsidiaries shall have (i) repaid in full all Indebtedness under the Eastward Facility and the EIB Loan Facility, (ii) terminated any commitments to lend or make other extensions of credit thereunder, and (iii) subject to Section 7.23, delivered to Agent and the Lenders payoff letters and all other documents or instruments necessary to release all Liens securing the Eastward Facility and the EIB Loan Facility upon payment in full of the obligations thereunder.
(c) The Loan Parties shall have received all material governmental, shareholder and third party consents and approvals necessary (or any other material consents as determined in the reasonable discretion of the Lenders) in connection with the transactions contemplated by this Agreement and the other Loan Documents and the other transactions contemplated hereby and all applicable waiting periods shall have expired without any action being taken by any Person that could reasonably be expected to restrain, prevent or impose any material adverse conditions on a consolidated basis after giving effect any of the Loan Parties or such other transactions or that could seek or threaten any of the foregoing, and no law or regulation shall be applicable which in the reasonable judgment of the Lenders could reasonably be expected to have such effect.
(d) No action, proceeding, investigation, regulation or legislation shall have been instituted, threatened in writing or proposed before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of, or which is related to or arises out of this Agreement or the other Loan Documents or the consummation of the transactions contemplated hereby or thereby, or which, in Agent’s reasonable discretion, would make it inadvisable to consummate the transactions contemplated by this Agreement or the other Loan Documents or the consummation of the transactions contemplated hereby or thereby.
(e) Agent and the Lenders shall have received all filings and recordations that are required by the Loan Documents or reasonably requested by Agent to perfect the security interests of Agent in the Collateral and Agent and the Lenders shall have received evidence reasonably satisfactory to the Spin Transaction, are Solvent;Lenders that upon such filings and recordations such security interests constitute valid and perfected first priority Liens (subject to Permitted Liens) thereon to the extent such security interest can be perfected by such filings and recordations.
(xiif) receipt by Agent and the Administrative Agent Lenders shall have received the results of updated Schedules 6.07a Lien search completed as of a recent date (including a search as to judgments, 6.08pending litigation, 6.18bankruptcy, 7.03(atax and intellectual property matters), 7.03(b), 7.03(d) and 7.03(i) to replace the corresponding Schedules and Annex attached hereto as of the Escrow Date in form and substance reasonably satisfactory thereto, made against the Loan Parties under the Uniform Commercial Code (or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to the Administrative Agent and the Lendersevidence or perfect security interests in all assets of such Loan Party, provided indicating among other things that the Lenders agree that assets of each such updated schedules shall be deemed to be satisfactory if such updated Schedules Loan Party are free and clear of any Lien (i) do not differ from the corresponding Schedules attached hereto as of the Escrow Date in a manner that is material and adverse to the Lenders or (ii) are otherwise satisfactory to the Required Lenders (and any references to any such Schedules in this Credit Agreement shall thereafter refer to such Schedules as the same may have been updated pursuant to this Section 5.01(b)(xiiexcept for Permitted Liens).
(cg) (i) The Collateral and Guarantee Requirement shall have been satisfied (provided that, solely with respect to the matters expressly identified in Section 7.02(q), the satisfaction of the conditions set forth in this clause (c) shall not be required on the Funding Date, and shall not be a condition to the obligations of the Lenders to make Loans hereunder on the Funding Date, but shall be required to be accomplished in accordance with Section 7.02(q)) and (ii) the Administrative Agent shall have received a certificate from Borrower’s insurance broker or other evidence satisfactory evidence to the Lenders that all steps have been taken to perfect security interests in the Collateral (including delivery of any certificated Equity Interests and other physical, pledged collateral).
(d) The Administrative Agent shall have received evidence that the insurance required by to be maintained pursuant to Section 7.02(e) 6 is in full force and effect, together with endorsements naming the Administrative Agent, for the benefit of the Lenders, Issuing Banks and Swing Line Lender, Agent as additional insured and loss payee thereunder to the extent required under Section 7.02(e).
(e) Since September 306, 2014, no fact, event or circumstance has occurred that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(f) The Administrative Agent shall have received the results of a recent Lien and judgment search in each relevant jurisdiction with respect case, in form and substance reasonably satisfactory to the Loan Parties, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted under Section 7.03(b).
(g) The Administrative Agent shall have received all documentation and other information reasonably requested by each Lender that is required for compliance with the Patriot Act or other “know your customer” and anti-money laundering rules and regulations (which requested information shall have been received at least five (5) Business Days prior to the Funding Date to the extent requested by the Lenders at least ten (10) Business Days prior to the Funding Date)Lenders.
(h) The Administrative Agent (for the benefit of itself and the other parties entitled thereto) and the Arrangers Lenders shall have received all fees from Company (i) the consolidated financial statements of Borrower and other amounts due its Subsidiaries for the Fiscal Quarters ending June 30, 2020, September 31, 2020 and payable December 31, 2020, (ii) pro forma consolidated balance sheets of Borrower and its Subsidiaries as at the Funding Date, and reflecting the transactions contemplated by the Loan Documents to occur on or prior to the Funding Date (including fees for the account of the Lenders Date, which pro forma financial statements shall be in form and fees, disbursements and charges of counsel substance reasonably satisfactory to the Administrative Agent Lenders, and (iii) the Arrangers)most recent capitalization table for Borrower, including the weighted average exercise price of employee stock options.
(i) Borrower shall have paid (i) to Agent, to the extent invoicedinvoiced to Borrower at least three (3) days prior to the Funding Date, reimbursement or payment of all reasonable Agent’s current expenses reimbursable pursuant to this Agreement and documented out-of-pocket (ii) to Lenders, the Commitment Fee and to the extent invoiced to Borrower at least three (3) days prior to the Funding Date, reimbursement of the Lenders’ current expenses required reimbursable pursuant to this Agreement, in each case under this clause (i), which amounts may be reimbursed or paid by deducted from the Borrower hereunder. Term Loan Advance.
(j) The Administrative Agent pro forma financial statements delivered pursuant to Section 4.2(h) shall notify the Borrower demonstrate in form and substance reasonably satisfactory to the Lenders of that on the Funding Date and immediately after giving effect to the Term Loan Advance and the payment of all transaction costs required to be paid in Cash, Company shall not permit Qualified Cash as of such notice date to be less than $15,000,000.
(k) The FP Stock Grant shall be conclusive and binding (andconsummated simultaneously or substantially concurrently with the funding of the Term Loan Advance, in accordance with the event such conditions are not so satisfied or waived, terms of the Commitments shall terminate at such time)FP Stock Grant Agreement.
Appears in 2 contracts
Sources: Loan and Security Agreement (Spire Global, Inc.), Loan and Security Agreement (NavSight Holdings, Inc.)
Funding Date. The obligations of the Lenders to make their respective Term Loans hereunder and the availability of the Revolving Facility shall become effective on the first date on which each of the following conditions is satisfied (or waived in accordance with Section 9.032.05(b)(i)) which date shall occur prior to July 10, 2015 (it being understood and agreed that to the extent the Funding Date does not occur on or prior to July 10, 2015, this Agreement and the Commitments of the Lenders shall automatically terminate without any further action by the Borrower, the Administrative Agent or any other person):
(a) The Administrative Agent shall have received from each party hereto or thereto either a counterpart of this Agreement and each other Loan Document signed on behalf of such party or written evidence satisfactory to the Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of such party) that such party has signed a counterpart of this Agreement and each other Loan Document to which it is a party, including, without limitation, the Collateral Agreement and such other Loan Documents as the Administrative Agent or its counsel may have reasonably requested.
(b) The Borrower has furnished to the Administrative Agent each of the following, with sufficient copies for the Lenders, all in form and substance satisfactory to the Administrative Agent and the Lenders:
(i) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying that all of the representations in this Agreement are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the Funding Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such earlier date and no Default or Unmatured Default has occurred and is continuing or would result from the Advance of the Term Loans on the Funding Date;
(ii) a duly executed Borrowing/Election Notice signed by an Authorized Officer of the Borrower.
(iii) the written opinion of the Loan Parties’ counsel, addressed to the Administrative Agent, each Issuing Bank and the Lenders, in substantially a form and containing assumptions and qualifications acceptable to the Administrative Agent and its counsel;
(iv) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying (A) that the Borrower is in pro forma compliance with the financial covenants set forth in Section 7.04 on the Funding Date, including computations demonstrating compliance in reasonable detail thereof; (B) as to the receipt by the Borrower of the proceeds of the Senior Notes in an amount that, together with the Term Loans made on the Funding Date, is not greater than $1,000,000,000; and (C) as to occurrence of the Spin Transaction;
(v) the (A) Historical Information and (B) the financial projections of the Borrower and its Subsidiaries on a consolidated basis, covering fiscal years 2015 through 2018 (inclusive), in each case on a consolidated basis;
(vi) a completed Perfection Certificate, dated the Funding Date and signed by an Authorized Officer of the Borrower;
(vii) evidence that appropriate Uniform Commercial Code financing statements have been (or, on the Funding Date, will be) duly filed in such office or offices as may be necessary or, in the opinion of Administrative Agent, desirable to perfect the Administrative Agent’s Liens in and to the Collateral;
(viii) copies of the Certificate of Incorporation of each Loan Party, together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of incorporation;
(ix) copies, certified by the Secretary or Assistant Secretary of each of the Loan Parties, of its By-Laws and of its Board of Directors’ (or similar body) resolutions authorizing the execution of the Loan Documents entered into by it;
(x) an incumbency certificate, executed by the Secretary or Assistant Secretary of each of the Loan Parties, which shall identify by name and title and bear the original or facsimile signature of the officers of the Loan Parties authorized to sign the Loan Documents and the officers of the Borrower authorized to make borrowings hereunder, upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(xi) a certificate in form and substance reasonably satisfactory to the Administrative Agent, signed by an Authorized Officer of the Borrower, attesting that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Spin Transaction, are Solvent;
(xii) receipt by the Administrative Agent of updated Schedules 6.07, 6.08, 6.18, 7.03(a), 7.03(b), 7.03(d) and 7.03(i) to replace the corresponding Schedules and Annex attached hereto as of the Escrow Date in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, provided that the Lenders agree that such updated schedules shall be deemed to be satisfactory if such updated Schedules (i) do not differ from the corresponding Schedules attached hereto as of the Escrow Date in a manner that is material and adverse to the Lenders or (ii) are otherwise satisfactory to the Required Lenders (and any references to any such Schedules in this Credit Agreement shall thereafter refer to such Schedules as the same may have been updated pursuant to this Section 5.01(b)(xii).
(c) (i) The Collateral and Guarantee Requirement shall have been satisfied (provided that, solely with respect to the matters expressly identified in Section 7.02(q), the satisfaction of the conditions set forth in this clause (c) shall not be required on the Funding Date, and shall not be a condition to the obligations of the Lenders to make Loans hereunder on the Funding Date, but shall be required to be accomplished in accordance with Section 7.02(q)) and (ii) the Administrative Agent shall have received satisfactory evidence that all steps have been taken to perfect security interests in the Collateral (including delivery of any certificated Equity Interests and other physical, pledged collateral).
(d) The Administrative Agent shall have received evidence that the insurance required by Section 7.02(e) is in effect, together with endorsements naming the Administrative Agent, for the benefit of the Lenders, Issuing Banks and Swing Line Lender, as additional insured and loss payee thereunder to the extent required under Section 7.02(e).
(e) Since September 30, 2014, no fact, event or circumstance has occurred that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(f) The Administrative Agent shall have received the results of a recent Lien and judgment search in each relevant jurisdiction with respect to the Loan Parties, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted under Section 7.03(b).
(g) The Administrative Agent shall have received all documentation and other information reasonably requested by each Lender that is required for compliance with the Patriot Act or other “know your customer” and anti-money laundering rules and regulations (which requested information shall have been received at least five (5) Business Days prior to the Funding Date to the extent requested by the Lenders at least ten (10) Business Days prior to the Funding Date).
(h) The Administrative Agent (for the benefit of itself and the other parties entitled thereto) and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Funding Date (including fees for the account of the Lenders and fees, disbursements and charges of counsel to the Administrative Agent and the Arrangers), including to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date and such notice shall be conclusive and binding (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 2 contracts
Sources: Escrow Agreement (Energizer SpinCo, Inc.), Escrow Agreement (Energizer Holdings Inc)
Funding Date. The Each Lender’s obligations of the Lenders to make their respective Term Loans any Loan hereunder and the availability of the Revolving Facility shall become effective on upon the first date on which each satisfaction or waiver (in accordance with Section 8.02) of the following conditions is satisfied on or after the Effective Date:
(or waived a) The Effective Date shall have occurred;
(b) The Acquisition shall have been (or, substantially contemporaneously with the borrowing of the Loans, shall be) consummated in each case in all material respects in accordance with Section 9.03the terms set forth in the Acquisition Agreement after giving effect to any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects of any such requests) which date shall occur prior by the Borrower that are materially adverse to July 10, 2015 the interests of the Lenders (it being understood and agreed that any modification, amendment, supplement, consent, waiver or request by the Borrower to the extent definition of Material Adverse Effect (as defined in the Funding Date does not occur on Acquisition Agreement) shall be deemed to be materially adverse to the interests of the Lenders and any consent or prior request made by the Borrower pursuant to July 10, 2015, this Section 6.15 of the Acquisition Agreement and the Commitments Acquired Company’s compliance therewith shall not be deemed to be materially adverse to the interests of the Lenders shall automatically terminate without any further action Lenders), unless consented to in writing by the BorrowerArrangers (such consent not to be unreasonably withheld, the Administrative Agent conditioned or any other person):delayed);
(ac) The Administrative Agent shall have received from each party hereto or thereto either a counterpart of this Agreement and each other Loan Document signed on behalf of such party or written evidence satisfactory to the Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of such party) that such party has signed a counterpart of this Agreement and each other Loan Document to which it is a party, including, without limitation, the Collateral Agreement and such other Loan Documents as the Administrative Agent or its counsel may have reasonably requested.
(b) The Borrower has furnished to the Administrative Agent each of the following, with sufficient copies for the Lenders, all in form and substance satisfactory to the Administrative Agent and the Lenders:
(i) a certificateaudited consolidated balance sheets and related audited statements of operations, in form stockholders’ equity and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying that all of the representations in this Agreement are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the Funding Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such earlier date and no Default or Unmatured Default has occurred and is continuing or would result from the Advance of the Term Loans on the Funding Date;
(ii) a duly executed Borrowing/Election Notice signed by an Authorized Officer of the Borrower.
(iii) the written opinion of the Loan Parties’ counsel, addressed to the Administrative Agent, each Issuing Bank and the Lenders, in substantially a form and containing assumptions and qualifications acceptable to the Administrative Agent and its counsel;
(iv) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying (A) that the Borrower is in pro forma compliance with the financial covenants set forth in Section 7.04 on the Funding Date, including computations demonstrating compliance in reasonable detail thereof; (B) as to the receipt by the Borrower of the proceeds of the Senior Notes in an amount that, together with the Term Loans made on the Funding Date, is not greater than $1,000,000,000; and (C) as to occurrence of the Spin Transaction;
(v) the (A) Historical Information and (B) the financial projections cash flows of the Borrower and its Subsidiaries on a consolidated basis, covering the Acquired Company for each of the three fiscal years 2015 through 2018 (inclusive), in each case on a consolidated basis;
(vi) a completed Perfection Certificate, dated most recently ended at least 90 days prior to the Funding Date and signed by an Authorized Officer (b) unaudited consolidated balance sheets and related unaudited statements of operations, stockholders’ equity and cash flows of the Borrower;
(vii) evidence that appropriate Uniform Commercial Code financing statements have been (or, on Borrower and the Acquired Company for each subsequent fiscal quarter ended at least 45 days prior to the Funding Date, will be) duly filed in such office or offices as may be necessary or, in the opinion of Administrative Agent, desirable to perfect the Administrative Agent’s Liens in and to the Collateral;
(viii) copies of the Certificate of Incorporation of each Loan Party, together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of incorporation;
(ix) copies, certified by the Secretary or Assistant Secretary of each of the Loan Parties, of its By-Laws and of its Board of Directors’ (or similar body) resolutions authorizing the execution of the Loan Documents entered into by it;
(x) an incumbency certificate, executed by the Secretary or Assistant Secretary of each of the Loan Parties, which shall identify by name and title and bear the original or facsimile signature of the officers of the Loan Parties authorized to sign the Loan Documents and the officers of the Borrower authorized to make borrowings hereunder, upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(xi) a certificate in form and substance reasonably satisfactory to the Administrative Agent, signed by an Authorized Officer of the Borrower, attesting that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Spin Transaction, are Solvent;
(xii) receipt by the Administrative Agent of updated Schedules 6.07, 6.08, 6.18, 7.03(a), 7.03(b), 7.03(d) and 7.03(i) to replace the corresponding Schedules and Annex attached hereto as of the Escrow Date in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, ; provided that the Lenders agree that such updated schedules shall be deemed to be satisfactory if such updated Schedules (i) do not differ from filing of financial statements complying with the corresponding Schedules attached hereto as of the Escrow Date in a manner that is material and adverse to the Lenders foregoing requirements on Form 10-K or (ii) are otherwise satisfactory to the Required Lenders (and any references to any such Schedules in this Credit Agreement shall thereafter refer to such Schedules Form 10-Q, as the same case may have been updated pursuant to this Section 5.01(b)(xii).
(c) (i) The Collateral and Guarantee Requirement shall have been satisfied (provided thatbe, solely with respect to by the matters expressly identified in Section 7.02(q), Borrower or the satisfaction of Acquired Company will satisfy the applicable conditions set forth in this clause (c) shall not be required on the Funding Date, and shall not be a condition to the obligations of the Lenders to make Loans hereunder on the Funding Date, but shall be required to be accomplished in accordance with Section 7.02(q)) and (ii) the Administrative Agent shall have received satisfactory evidence that all steps have been taken to perfect security interests in the Collateral (including delivery of any certificated Equity Interests and other physical, pledged collateral)4.
(d) The Administrative Agent shall have received evidence that the insurance required by Section 7.02(e) is in effect, together with endorsements naming the Administrative Agent, for the benefit of the Lenders, Issuing Banks and Swing Line Lender, as additional insured and loss payee thereunder to the extent required under Section 7.02(e).
(e) Since September 30, 2014, no fact, event or circumstance has occurred that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(f) The Administrative Agent shall have received the results of a recent Lien and judgment search in each relevant jurisdiction with respect to the Loan Parties, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted under Section 7.03(b).
(g) The Administrative Agent shall have received all documentation and other information reasonably requested by each Lender that is required for compliance with the Patriot Act or other “know your customer” and anti-money laundering rules and regulations (which requested information shall have been received at least five (5) Business Days prior to the Funding Date to the extent requested by the Lenders at least ten (10) Business Days prior to the Funding Date).
(h) The Administrative Agent (for the benefit of itself and the other parties entitled thereto) and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Funding Date (including fees for the account of the Lenders and fees, disbursements and charges of counsel to the Administrative Agent and the Arrangers), including to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date and such notice shall be conclusive and binding (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 2 contracts
Sources: Bridge Term Loan Credit Agreement (Walgreens Boots Alliance, Inc.), Term Loan Credit Agreement (Walgreens Boots Alliance, Inc.)
Funding Date. The obligations Each 2016 New Term Lender shall disburse the 2016 New Term Loan to be made by it pursuant to Section 2 of the Lenders to make their respective Term Loans hereunder and the availability of the Revolving Facility shall become effective this Amendment on the first date on which (the “2016 New Term Loan Amendment Funding Date”) when each of the following conditions is satisfied shall have been satisfied:
(or waived in accordance with Section 9.03a) which date the Lead Arrangers shall occur prior to July 10, 2015 (it being understood have received all fees and agreed that to the extent the Funding Date does not occur other amounts due and payable on or prior to July 10such date including: (i) fees, 2015disbursements and charges of counsel to the Lead Arrangers under Section 10.07 of the Amended Credit Agreement, this Agreement including to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder and (ii) all fees due and payable to Lead Arrangers on such date in connection with the 2016 New Term Loans and the Commitments agreements of the 2016 New Term Lenders shall automatically terminate without any further action by and the Borrower, the Administrative Agent or any other person):
(a) The Administrative Agent shall have received from each party hereto or thereto either a counterpart of this Agreement and each other Loan Document signed on behalf of such party or written evidence satisfactory to the Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of such party) that such party has signed a counterpart of this Agreement and each other Loan Document to which it is a party, including, without limitation, the Collateral Agreement and such other Loan Documents as the Administrative Agent or its counsel may have reasonably requested.Lead Arrangers hereunder;
(b) The Borrower has furnished to the Administrative Agent each of the following, with sufficient copies for the Lenders, all in form and substance satisfactory to the Administrative Agent and the Lenders:
(i) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying that all of the representations in this Agreement are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the 2016 New Term Loan Amendment Funding Date, except to (i) the extent that such representations and warranties specifically refer to an earlier date, in which case they Specified Representations shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such earlier date and (ii) there shall exist no Default or Unmatured Default Default;
(i) the representations made by or with respect to the Target and its subsidiaries in the Acquisition Agreement as are material to the interests of the 2016 New Term Lenders (in their capacities as such) (but only to the extent that the Borrower has the right to terminate the Borrower’s obligations under the Acquisition Agreement as a result of a breach of such representations in the Acquisition Agreement) (such representations, the “Acquisition Agreement Representations”) shall be true and correct and (ii) there shall not have occurred and is continuing or would result from the Advance date of the Term Loans Acquisition Agreement any event or development that has had or is reasonably expect to have a Material Adverse Effect (as defined in the Acquisition Agreement as in effect on the date hereof);
(d) the Administrative Agent shall have received:
(i) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying that (A) the Acquisition constitutes a Limited Condition Acquisition and (B) the conditions set forth in clauses (b) and (c) of this Section 9 have been satisfied on and as of the 2016 New Term Loan Amendment Funding Date;
(ii) a duly executed Borrowing/Election Notice signed by an Authorized Officer of the Borrower.;
(iii) the written opinion of the Loan Parties’ counsel, addressed to the Administrative Agent, each Issuing Bank Agent and the 2016 New Term Lenders, in substantially a form and containing assumptions and qualifications acceptable to the Administrative Agent and its counsel;
(iv) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying (A) that the Borrower is in pro forma compliance with the financial covenants set forth in Section 7.04 on the Funding Date, including computations demonstrating compliance in reasonable detail thereof; (B) as to the receipt by the Borrower of the proceeds of the Senior Notes in an amount that, together with the Term Loans made on the Funding Date, is not greater than $1,000,000,000; and (C) as to occurrence of the Spin Transaction;
(v) the (A) Historical Information and (B) the financial projections of the Borrower and its Subsidiaries on a consolidated basis, covering fiscal years 2015 through 2018 (inclusive), in each case on a consolidated basis;
(vi) a completed Perfection Certificate, dated the Funding Date and signed by an Authorized Officer of the Borrower;
(vii) evidence that appropriate Uniform Commercial Code financing statements have been (or, on the Funding Date, will be) duly filed in such office or offices as may be necessary or, in the opinion of Administrative Agent, desirable to perfect the Administrative Agent’s Liens in and to the Collateral;
(viii) copies of the Certificate of Incorporation of each Loan Party, together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of incorporation;
(ixv) copies, certified by the Secretary or Assistant Secretary of each of the Loan Parties, of its By-Laws and of its Board of Directors’ (or similar body) resolutions authorizing the execution of the Loan Documents entered into by it;
(xvi) an incumbency certificate, executed by the Secretary or Assistant Secretary of each of the Loan Parties, which shall identify by name and title and bear the original or facsimile signature of the officers of the Loan Parties authorized to sign the Loan Documents this Amendment and the officers of the Borrower authorized to make borrowings hereunder, upon which certificate the 2016 New Term Lenders shall be entitled to rely until informed of any change in writing by the Borrower;; and
(xivii) a certificate in form and substance reasonably satisfactory to the Administrative Agent, signed by an Authorized Officer of the Borrower, attesting that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Spin TransactionAcquisition, are Solvent;
(xii) receipt by the Administrative Agent of updated Schedules 6.07, 6.08, 6.18, 7.03(a), 7.03(b), 7.03(d) and 7.03(i) to replace the corresponding Schedules and Annex attached hereto as of the Escrow Date in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, provided that the Lenders agree that such updated schedules shall be deemed to be satisfactory if such updated Schedules (i) do not differ from the corresponding Schedules attached hereto as of the Escrow Date in a manner that is material and adverse to the Lenders or (ii) are otherwise satisfactory to the Required Lenders (and any references to any such Schedules in this Credit Agreement shall thereafter refer to such Schedules as the same may have been updated pursuant to this Section 5.01(b)(xii).
(c) (i) The Collateral and Guarantee Requirement shall have been satisfied (provided that, solely with respect to the matters expressly identified in Section 7.02(q), the satisfaction of the conditions set forth in this clause (c) shall not be required on the Funding Date, and shall not be a condition to the obligations of the Lenders to make Loans hereunder on the Funding Date, but shall be required to be accomplished in accordance with Section 7.02(q)) and (iie) the Administrative Agent shall have received satisfactory evidence that all steps have been taken to perfect security interests in the Collateral (including delivery of any certificated Equity Interests and other physical, pledged collateral).
(d) The Administrative Agent shall have received evidence that the insurance required by Section 7.02(e) is in effect, together with endorsements naming the Administrative Agent, for the benefit of the Lenders, Issuing Banks and Swing Line Lender, as additional insured and loss payee thereunder to the extent required under Section 7.02(e).
(e) Since September 30, 2014, no fact, event or circumstance has occurred that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(f) The Administrative Agent shall have received the results of a recent Lien and judgment search in each relevant jurisdiction with respect to the Loan Parties, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted under Section 7.03(b).
(g) The Administrative Agent shall have received all documentation and other information with respect to the Target reasonably requested by each Lender the 2016 New Term Lenders that is required for compliance with the Patriot Act or other “know your customer” and anti-money laundering rules and regulations (which requested information shall have been received at least five (5) Business Days prior to the 2016 New Term Loan Amendment Funding Date to the extent requested by the Lenders at least ten (10) Business Days prior to the 2016 New Term Loan Amendment Funding Date).;
(f) the Acquisition shall be consummated simultaneously with the borrowing of the 2016 New Term Loans in accordance with applicable law and on the terms in the Acquisition Agreement (without any amendment, modification or waiver thereof or any consent thereunder which is materially adverse to the interest of the 2016 New Term Lenders without the prior written consent of the Lead Arrangers (it being understood that any change in the purchase consideration of less than five percent (5%) in respect of the Acquisition will be deemed not to be materially adverse to the interests of the 2016 New Term Lender));
(g) on the 2016 New Term Loan Amendment Funding Date, after giving effect to the consummation of the Acquisition and the funding of the 2016 New Term Loan, neither the Borrower nor any of its Subsidiaries shall have any indebtedness for borrowed money other than the Indebtedness that is permitted to remain outstanding under the Amended Credit Agreement, and the Administrative Agent shall have received reasonably satisfactory evidence of repayment of the indebtedness outstanding under (i) the Combination Loan and Security Agreement, dated as of May 9, 2014, among American Covers, Inc. and ▇▇▇▇▇ Fargo Equipment Finance, Inc., and (ii) the Amend and Restated Credit Agreement (First Lien), dated as of September 1, 2015, among American Covers, Inc., Madison Capital Funding LLC, as Agent, and the other lenders parties thereto, and (iii) the Amend and Restated Credit Agreement (Second Lien), dated as of September 1, 2015, among American Covers, Inc., LBC Credit Partners III, L.P., as Agent, and the other lenders parties thereto, and the discharge (or the making of arrangements for discharge) of all liens securing any assets or property of the Borrower and its Subsidiaries other than Liens permitted to remain outstanding under the Amended Credit Agreement; and
(h) The Administrative Agent (for the benefit conditions set forth in Section 5.02 of itself the Credit Agreement shall be satisfied on and as of the other parties entitled thereto) and the Arrangers shall have received all fees and other amounts due and payable on or 2016 New Term Loan Amendment Funding Date, both immediately prior to and immediately after giving effect to the Funding Date transactions contemplated by this Amendment (including fees for subject to the account proviso of Section 2.05(b)(i)(1) of the Lenders and fees, disbursements and charges of counsel to the Administrative Agent and the Arrangers), including to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date and such notice shall be conclusive and binding (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such timeCredit Agreement).
Appears in 1 contract
Sources: Incremental Term Loan Amendment (Energizer Holdings, Inc.)
Funding Date. The obligations of the Lenders to make their respective Term Loans hereunder and to the availability of the Revolving Facility shall become effective Borrower on the first date on which each Funding Date are subject to the satisfaction of the following conditions:
(a) the Borrower shall have duly completed and submitted to the Administrative Agent the Borrowing Request for funding of such Loans;
(b) all conditions is satisfied set forth in Section 4.01 shall have been satisfied, and shall have remained satisfied, as of the Funding Date (or except to the extent waived in accordance with Section 9.039.02);
(c) which date shall occur prior to July 10the fact that on the Funding Date, 2015 (it being understood both before and agreed that after giving effect to the extent the Funding Date does not occur on or prior to July 10, 2015, this Agreement Borrowings and the Commitments other Transactions occurring on such date, no Default or Event of the Lenders Default shall automatically terminate without any further action by the Borrower, the Administrative Agent or any other person):have occurred and be continuing; and
(ad) The Administrative Agent shall have received from each party hereto or thereto either a counterpart the fact that the representations and warranties contained in Article III of this Agreement and each other Loan Document signed on behalf of such party or written evidence satisfactory to the Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of such party) that such party has signed a counterpart of this Agreement and each other Loan Document to which it is a party, including, without limitation, the Collateral Agreement representation and such other Loan Documents as the Administrative Agent or its counsel may have reasonably requested.
(bwarranty set forth in Section 3.04(b)) The Borrower has furnished to the Administrative Agent each of the following, with sufficient copies for the Lenders, all in form and substance satisfactory to the Administrative Agent and the Lenders:
(i) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying that all of the representations in this Agreement are shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the Funding Date, date of such Borrowing except for changes expressly permitted herein and except to the extent that such representations and warranties specifically refer relate solely to an earlier date, date (in which case they event such representations and warranties shall be have been true and correct in all material respects (except that any representation on and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such earlier date date). The Borrowing Request shall be deemed to constitute a representation and no Default or Unmatured Default has occurred and is continuing or would result from warranty by the Advance of the Term Loans Borrower on the Funding Date;
(ii) a duly executed Borrowing/Election Notice signed by an Authorized Officer of the Borrower.
(iii) the written opinion of the Loan Parties’ counsel, addressed date thereof as to the Administrative Agentmatters specified in paragraphs (b), each Issuing Bank (c) and (d) of this Section. Notwithstanding the Lendersforegoing, in substantially a form and containing assumptions and qualifications acceptable the Lenders shall have no obligations to make Loans to the Administrative Agent and its counsel;
(iv) a certificate, in form and substance satisfactory to Borrower hereunder unless the Administrative Agent signed by an Authorized Officer of the Borrower, certifying (A) that the Borrower is in pro forma compliance with the financial covenants conditions set forth in Section 7.04 on the Funding Date, including computations demonstrating compliance in reasonable detail thereof; (B) as to the receipt by the Borrower of the proceeds of the Senior Notes in an amount that, together with the Term Loans made on the Funding Date, is not greater than $1,000,000,000; 4.01 and (C) as to occurrence of the Spin Transaction;
(v) the (A) Historical Information and (B) the financial projections of the Borrower and its Subsidiaries on a consolidated basis, covering fiscal years 2015 through 2018 (inclusive), in each case on a consolidated basis;
(vi) a completed Perfection Certificate, dated the Funding Date and signed by an Authorized Officer of the Borrower;
(vii) evidence that appropriate Uniform Commercial Code financing statements this Section 4.02 have been satisfied (oror waived in accordance with Section 9.02) on or before 3:00 p.m., New York City time, on the Funding Date, will be) duly filed in such office at which time all Commitments shall automatically terminate without further action by any of the Lenders or offices as may be necessary or, in the opinion of Administrative Agent, desirable to perfect the Administrative Agent’s Liens in and to the Collateral;
(viii) copies of the Certificate of Incorporation of each Loan Party, together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of incorporation;
(ix) copies, certified by the Secretary or Assistant Secretary of each of the Loan Parties, of its By-Laws and of its Board of Directors’ (or similar body) resolutions authorizing the execution of the Loan Documents entered into by it;
(x) an incumbency certificate, executed by the Secretary or Assistant Secretary of each of the Loan Parties, which shall identify by name and title and bear the original or facsimile signature of the officers of the Loan Parties authorized to sign the Loan Documents and the officers of the Borrower authorized to make borrowings hereunder, upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(xi) a certificate in form and substance reasonably satisfactory to the Administrative Agent, signed by an Authorized Officer of the Borrower, attesting that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Spin Transaction, are Solvent;
(xii) receipt by the Administrative Agent of updated Schedules 6.07, 6.08, 6.18, 7.03(a), 7.03(b), 7.03(d) and 7.03(i) to replace the corresponding Schedules and Annex attached hereto as of the Escrow Date in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, provided that the Lenders agree that such updated schedules shall be deemed to be satisfactory if such updated Schedules (i) do not differ from the corresponding Schedules attached hereto as of the Escrow Date in a manner that is material and adverse to the Lenders or (ii) are otherwise satisfactory to the Required Lenders (and any references to any such Schedules in this Credit Agreement shall thereafter refer to such Schedules as the same may have been updated pursuant to this Section 5.01(b)(xii).
(c) (i) The Collateral and Guarantee Requirement shall have been satisfied (provided that, solely with respect to the matters expressly identified in Section 7.02(q), the satisfaction of the conditions set forth in this clause (c) shall not be required on the Funding Date, and shall not be a condition to the obligations of the Lenders to make Loans hereunder on the Funding Date, but shall be required to be accomplished in accordance with Section 7.02(q)) and (ii) the Administrative Agent shall have received satisfactory evidence that all steps have been taken to perfect security interests in the Collateral (including delivery of any certificated Equity Interests and other physical, pledged collateral).
(d) The Administrative Agent shall have received evidence that the insurance required by Section 7.02(e) is in effect, together with endorsements naming the Administrative Agent, for the benefit of the Lenders, Issuing Banks and Swing Line Lender, as additional insured and loss payee thereunder to the extent required under Section 7.02(e).
(e) Since September 30, 2014, no fact, event or circumstance has occurred that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(f) The Administrative Agent shall have received the results of a recent Lien and judgment search in each relevant jurisdiction with respect to the Loan Parties, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted under Section 7.03(b).
(g) The Administrative Agent shall have received all documentation and other information reasonably requested by each Lender that is required for compliance with the Patriot Act or other “know your customer” and anti-money laundering rules and regulations (which requested information shall have been received at least five (5) Business Days prior to the Funding Date to the extent requested by the Lenders at least ten (10) Business Days prior to the Funding Date).
(h) The Administrative Agent (for the benefit of itself and the other parties entitled thereto) and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Funding Date (including fees for the account of the Lenders and fees, disbursements and charges of counsel to the Administrative Agent and the Arrangers), including to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date and such notice shall be conclusive and binding (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 1 contract
Sources: Loan Agreement (Global Payments Inc)
Funding Date. The obligations of the Lenders to make their respective Term Loans hereunder and the availability of the Revolving Facility Issuing Banks to issue Letters of Credit hereunder shall not become effective on until the first date on which each of the following conditions is satisfied (or waived in accordance with Section 9.03) which date shall occur prior to July 10, 2015 (it being understood and agreed that to the extent the Funding Date does not occur on or prior to July 10, 2015, this Agreement and the Commitments of the Lenders shall automatically terminate without any further action by the Borrower, the Administrative Agent or any other person9.02):
(a) The Effective Date shall have occurred.
(b) Since November 15, 2021, there shall not have occurred a Company Material Adverse Effect (as defined in either Funding Date Acquisition Agreement) that is continuing.
(c) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent:
(i) the Collateral Documents and the Guarantee Agreement, duly executed by each party thereto, together with:
(A) the certificates representing the shares of capital stock or other Equity Interests (in each case, to the extent certificated) required to be pledged by any Loan Party (including the Parent Guarantor and the Borrower) pursuant to the Collateral Agreements, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof,
(B) each promissory note (if any) required to be pledged by any Loan Party (including the Parent Guarantor the Borrower) pursuant to the Collateral Agreements, endorsed in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof, Redline Waldencast - Credit Agreement (as amended by the Second Amendment) 2324969v9 and WALD - Credit Agreement (conformed through Third Amendment) 2412084v2 04/26/2024 1:14:08 PM
(C) one or more intellectual property security agreements, duly executed and delivered by each Loan Party required to be party thereto pursuant to the Collateral Agreements,
(D) UCC-1 financing statements with respect to each Loan Party, in proper form for filing with the applicable Governmental Authority, and
(ii) except to the extent previously delivered pursuant to Section 4.01(b) (although in respect of Parent Guarantor, a certificate complying with the requirements of this Section 4.02(c)(ii) shall be delivered to reflect the appointment of the Replacement General Partner as general partner of Parent Guarantor in the period between the Effective Date and the Funding Date), a certificate of each Loan Party party to any Loan Document as of the Funding Date, dated as of the Funding Date and executed by a secretary, assistant secretary or other Responsible Officer thereof, which shall:
(A) certify that:
(1) attached thereto is a true and complete copy of the certificate or articles of incorporation, formation or organization (including all amendments thereto) of such Loan Party (and in relation to any Loan Party incorporated in Jersey, a copy of all consents to issue shares issued to it under the Control of Borrower (Jersey) Order 1958 and all other Jersey regulatory approvals, authorizations, consents, licenses, permits or registrations issued to it (if any)) certified as of a recent date by the relevant authority of its jurisdiction of incorporation, association, organization, formation or registration,
(2) such certificate or articles of incorporation, formation or organization of such Loan Party attached thereto have not been amended (except as attached thereto) since the date reflected thereon and are in full force and effect,
(3) attached thereto is a true and correct copy of the by-laws or operating, management, partnership or similar agreement of such Loan Party, together with all amendments thereto as of the Effective Date and such by-laws or operating, management, partnership or similar agreements are or is in full force and effect and
(4) attached thereto is a true and complete copy of the resolutions or written consent, as applicable, of its board of directors, board of managers, sole member, general partner, shareholders or other applicable governing body authorizing the execution, delivery and performance of the Loan Documents, which resolutions or consent have not been modified, rescinded or amended (other than as attached thereto) and are in full force and effect, and
(B) identify by name and title and bear the signatures of the officers, managers, directors or authorized signatories of such Loan Party authorized to sign the Loan Documents to which such Loan Party is a party on the Effective Date and (ii) a good standing (or equivalent) certificate as of a recent date for such Loan Party from the Redline Waldencast - Credit Agreement (as amended by the Second Amendment) 2324969v9 and WALD - Credit Agreement (conformed through Third Amendment) 2412084v2 04/26/2024 1:14:08 PM relevant authority of its jurisdiction of incorporation, association, organization, formation or registration (to the extent applicable) and a bring down report from the corporate service provider from which such certificates were obtained verifying that such Loan Party is in good standing on the Funding Date (or, if not reasonably practicable to receive such bring down report on the Funding Date, on the day that is one (1) Business Day prior to the Funding Date).
(d) The Administrative Agent shall have received from each party hereto or thereto either a counterpart of this Agreement and each other Loan Document signed on behalf of such party or written evidence satisfactory opinion (addressed to the Administrative Agent and the Lenders and dated the Funding Date) of (which may include facsimile or electronic transmission of a signed signature page of such partyi) that such party has signed a counterpart of this Agreement and each other Loan Document to which it is a party▇▇▇▇▇▇▇, includingArps, without limitationSlate, the Collateral Agreement and such other Loan Documents as the Administrative Agent or its ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, United States counsel may have reasonably requested.
(b) The Borrower has furnished to the Administrative Agent each of Loan Parties, (ii) Walkers (Cayman) LLP, Cayman Islands counsel to the followingLenders and (iii) Walkers (Jersey) LLP, with sufficient copies for the Lenders, all in form and substance satisfactory Jersey counsel to the Administrative Agent and the Lenders:
(i) a certificate, each in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(e) The Administrative Agent shall have received a Solvency Certificate, dated the Funding Date and signed by an Authorized a Financial Officer of the Parent Guarantor.
(f) The Administrative Agent shall have received a certificate, dated the Funding Date and signed by a Responsible Officer of each of the Parent Guarantor and the Borrower, certifying that all there have been no material changes (or, in the case of the representations Parent Guarantor, no changes that would be materially adverse to the Lenders) to the documents delivered pursuant to Section 4.01(b) with respect to the Parent Guarantor or the Borrower, in this Agreement are each case, since the Effective Date.
(g) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03.
(h) (i) The Specified Representations shall be true and correct in all material respects (except provided that, any such representations and warranties that any representation and warranty that is are qualified as to “materiality” or “by Material Adverse Effect” Effect or other materiality qualifier shall be true and correct in all respects) on and as of the Funding Date, such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be are true and correct in all material respects (except that or, in the case of any representation and warranty that is such representations or warranties qualified as to “materiality” or “by Material Adverse Effect” shall be true and correct Effect or other materiality qualifier, in all respects) as of such earlier date and no Default or Unmatured Default has occurred and is continuing or would result from the Advance of the Term Loans on the Funding Date;
(ii) a duly executed Borrowing/Election Notice signed by the Specified Acquisition Agreement Representations shall be true and correct in all respects as of such date except to the extent that such representations and warranties specifically refer to an Authorized Officer earlier date, in which case they are true and correct in all respects as of the Borrowersuch earlier date.
(iiii) the written opinion of the Loan Parties’ counsel, addressed to the Administrative Agent, each Issuing Bank and the Lenders, in substantially a form and containing assumptions and qualifications acceptable to the The Administrative Agent and its counsel;
(iv) shall have received a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying (A) that the Borrower is in pro forma compliance with the financial covenants set forth in Section 7.04 on the Funding Date, including computations demonstrating compliance in reasonable detail thereof; (B) as to the receipt by the Borrower of the proceeds of the Senior Notes in an amount that, together with the Term Loans made on the Funding Date, is not greater than $1,000,000,000; and (C) as to occurrence of the Spin Transaction;
(v) the (A) Historical Information and (B) the financial projections of the Borrower and its Subsidiaries on a consolidated basis, covering fiscal years 2015 through 2018 (inclusive), in each case on a consolidated basis;
(vi) a completed Perfection Certificate, dated the Funding Date and signed by an Authorized Officer of the Borrower;
(vii) evidence that appropriate Uniform Commercial Code financing statements have been (or, on the Funding Date, will be) duly filed in such office or offices as may be necessary or, in the opinion of Administrative Agent, desirable to perfect the Administrative Agent’s Liens in and to the Collateral;
(viii) copies of the Certificate of Incorporation of each Loan Party, together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of incorporation;
(ix) copies, certified by the Secretary or Assistant Secretary of each of the Loan Parties, of its By-Laws and of its Board of Directors’ (or similar body) resolutions authorizing the execution of the Loan Documents entered into by it;
(x) an incumbency certificate, executed by the Secretary or Assistant Secretary of each of the Loan Parties, which shall identify by name and title and bear the original or facsimile signature of the officers of the Loan Parties authorized to sign the Loan Documents and the officers of the Borrower authorized to make borrowings hereunder, upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(xi) a certificate in form and substance reasonably satisfactory to the Administrative Agent, signed by an Authorized Responsible Officer of the Borrower, attesting that the Borrower and its Subsidiaries, on a consolidated basis after giving effect certifying as to the Spin Transactionconditions set forth in clauses 4.02(b), are Solvent;(h), (k) and (l).
(xiij) receipt by the The Administrative Agent of shall have received schedules to this Agreement, updated Schedules 6.07, 6.08, 6.18, 7.03(a), 7.03(b), 7.03(d) and 7.03(i) to replace the corresponding Schedules and Annex attached hereto as of the Escrow Funding Date and in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, provided that that, (i) the Administrative Agent and the Lenders agree that such updated schedules shall be deemed to be satisfactory if such updated Schedules (i) schedules do not differ from the corresponding Schedules schedules attached hereto as of the Escrow Effective Date in a manner that is material and adverse to the Lenders or (ii) are otherwise satisfactory to the Required Lenders (and any references to any such Schedules in this Credit Agreement shall thereafter refer to such Schedules as the same may have been updated pursuant to this Section 5.01(b)(xii).
(c) (i) The Collateral and Guarantee Requirement shall have been satisfied (provided that, solely with respect to the matters expressly identified in Section 7.02(q), the satisfaction of the conditions set forth in this clause (c) shall not be required on the Funding Date, and shall not be a condition to the obligations of the Lenders to make Loans hereunder on the Funding Date, but shall be required to be accomplished in accordance with Section 7.02(q)) and (ii) the Administrative Agent Lenders shall be deemed to have consented to any such updated schedules unless the Required Lenders shall have received satisfactory evidence that all steps have been taken to perfect security interests objected in the Collateral writing within three (including delivery 3) Business Days after receipt of any certificated Equity Interests such updated schedules. Redline Waldencast - Credit Agreement (as amended by the Second Amendment) 2324969v9 and other physical, pledged collateral)WALD - Credit Agreement (conformed through Third Amendment) 2412084v2 04/26/2024 1:14:08 PM
(k) The Existing Credit Agreement Refinancing shall have occurred or will occur on the Funding Date.
(dl) The Funding Date Acquisitions shall have been, or substantially concurrently with the initial Borrowing under this Agreement shall be, consummated in all material respects in accordance with the Funding Date Acquisition Agreements, without giving effect to any modification, amendments, consents or waivers to, or any actions taken by the Parent Guarantor, the Borrower or any of its Affiliates in respect of, the Funding Date Acquisition Agreements that are material and adverse to the Lenders or the Arrangers without the prior written consent of the Arrangers; provided that, (i) any change to the definition of “Company Material Adverse Effect” (as defined in either Funding Date Acquisition Agreement) without such consent shall be deemed to be materially adverse to the Lenders and the Arrangers, and (ii) any change in the purchase price in connection with either Funding Date Acquisition shall not be deemed to be material and adverse to the interests of the Lenders and the Arrangers; provided that, (A) any resulting reduction in each case shall be allocated to reduce the aggregate principal amount of the Term Loans, and (B) any increase in purchase price (excluding any purchase price adjustments in accordance with the terms of either Funding Date Acquisition Agreement) shall be funded with the proceeds of an equity contribution.
(i) The Administrative Agent shall have received evidence that the insurance required by Section 7.02(ereceived, at least three (3) is in effect, together with endorsements naming the Administrative Agent, for the benefit of the Lenders, Issuing Banks and Swing Line Lender, as additional insured and loss payee thereunder Business Days prior to the extent required under Section 7.02(e).
(e) Since September 30Funding Date, 2014, no fact, event or circumstance has occurred that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(f) The Administrative Agent shall have received the results of a recent Lien and judgment search in each relevant jurisdiction with respect to the Loan Parties, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted under Section 7.03(b).
(g) The Administrative Agent shall have received all documentation and other information reasonably regarding the Guarantors requested by each Lender that is required for compliance in connection with the Patriot Act or other applicable “know your customer” and anti-money laundering rules and regulations (which requested information shall have been received at least five (5) Business Days prior to regulations, including the Funding Date Patriot Act, to the extent requested by the Lenders in writing at least ten (10) Business Days prior to the Funding Date and (ii) to the extent any Guarantor qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least three (3) Business Days prior to the Funding Date, any Lender that has requested, in a written notice to the Borrower at least three (3) Business Days prior to the Effective Date, a Beneficial Ownership Certification in relation to such Guarantor shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (m) shall be deemed to be satisfied).
(hn) The Administrative Agent (for the benefit of itself and the other parties entitled thereto) and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Funding Date (including fees for the account of the Lenders and feesDate, disbursements and charges of counsel to the Administrative Agent and the Arrangers)including, including to the extent invoicedinvoiced at least two (2) Business Days prior to the Funding Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by any Loan Party under any Loan Document.
(o) [Reserved.]
(p) To the extent requested at least three (3) Business Days prior to the Funding Date, a Note executed by the Borrower hereunderin favor of each Lender which has requested a Note pursuant to Section 2.10(e) shall have been received by each such Lender.
(q) The Administrative Agent shall have received:
(i) duly completed grantor consent forms signed by the relevant grantor and any individual named therein as the contact for service for the applicable grantor consenting to the inclusion of their name and contact details in a financing statement on the SIR against the relevant grantor in respect of the security interest to be created pursuant to each Jersey Collateral Agreement, Redline Waldencast - Credit Agreement (as amended by the Second Amendment) 2324969v9 and WALD - Credit Agreement (conformed through Third Amendment) 2412084v2 04/26/2024 1:14:08 PM
(ii) a search on the SIR made against each grantor on the Funding Date showing that no financing statement have been registered against it (other than in favor of the Administrative Agent),
(iii) a verification statement issued by the Registrar of the SIR indicating that a financing statement has been successfully registered in respect of each grantor under each Jersey Collateral Agreement,
(iv) a copy of each duly executed notice and acknowledgement required to be given in connection with each Jersey Collateral Agreement, and
(v) in relation to the Borrower and Obagi Holdco 2 Limited, a copy of a special resolution amending its articles of association to permit the taking and enforcement of security without, inter alia, a right for directors to refuse, in their discretion, to register a transfer of shares and an extract of its register of members including an annotation identifying the shares over which security has been granted, duly authorized by an authorized signatory of that company as at the date of the relevant Jersey Collateral Agreement. provided that, notwithstanding the foregoing, to the extent that any security interest in any Collateral is not, or cannot be, provided and/or perfected on the Funding Date (other than the pledge and perfection of the security interests (1) in the certificated equity securities of the Borrower and any Domestic Subsidiary and (2) in other assets with respect to which a lien may be perfected by the filing of a UCC financing statement) after the Loan Parties’ use of commercially reasonable efforts to do so or without undue burden or expense, then the provision and/or perfection of a security interest in such Collateral shall not constitute a condition precedent under this Section 4.02 but instead shall be required to be delivered after the Funding Date pursuant to arrangements to be mutually agreed by the Borrower and the Administrative Agent not later than ninety (90) days after the Funding Date or such longer period as may be agreed by the Administrative Agent in its reasonable discretion. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date Date, and such notice shall be conclusive and binding binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with the Section 9.02) on or prior to 5:00 p.m., New York City time on August 15, 2022 (and, in the event such conditions are not so satisfied or waived, this Agreement and the Commitments shall terminate at such time).
Appears in 1 contract
Sources: Credit Agreement (Waldencast PLC)
Funding Date. The Each Lender’s obligations of the Lenders to make their respective Term Loans any Loan hereunder and the availability of the Revolving Facility shall become effective on upon the first date on which each satisfaction or waiver (in accordance with Section 8.02) of the following conditions is satisfied on or after the Effective Date:
(or waived a) The Effective Date shall have occurred;
(b) The Acquisition shall have been (or, substantially contemporaneously with the borrowing of the Loans, shall be) consummated in each case in all material respects in accordance with Section 9.03the terms set forth in the Acquisition Agreement after giving effect to any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects of any such requests) which date shall occur prior by the Borrower that are materially adverse to July 10, 2015 the interests of the Lenders (it being understood and agreed that (i) any modification, amendment, supplement, consent, waiver or request by the Borrower to the extent definition of Material Adverse Effect (as defined in the Funding Date does not occur on Acquisition Agreement) shall be deemed to be materially adverse to the interests of the Lenders and (ii) (x) any consent or prior request made by the Borrower pursuant to July 10, 2015, this Section 6.15 of the Acquisition Agreement and the Commitments Acquired Company’s compliance therewith and (y) any modification, amendment, supplement, consent, waiver or request with respect to definition of the Lenders “End Date” (and any corresponding changes to any terms or provisions (if any) requiring or addressing the consummation of the Acquisition prior to the “End Date”) thereunder, in each case, shall automatically terminate without any further action not be deemed to be materially adverse to the interests of the Lenders), unless consented to in writing by the BorrowerArrangers (such consent not to be unreasonably withheld, the Administrative Agent conditioned or any other person):delayed);
(ac) The Administrative Agent shall have received from each party hereto or thereto either a counterpart of this Agreement and each other Loan Document signed on behalf of such party or written evidence satisfactory to the Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of such party) that such party has signed a counterpart of this Agreement and each other Loan Document to which it is a party, including, without limitation, the Collateral Agreement and such other Loan Documents as the Administrative Agent or its counsel may have reasonably requested.
(b) The Borrower has furnished to the Administrative Agent each of the following, with sufficient copies for the Lenders, all in form and substance satisfactory to the Administrative Agent and the Lenders:
(i) a certificateaudited consolidated balance sheets and related audited statements of operations, in form stockholders’ equity and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying that all of the representations in this Agreement are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the Funding Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such earlier date and no Default or Unmatured Default has occurred and is continuing or would result from the Advance of the Term Loans on the Funding Date;
(ii) a duly executed Borrowing/Election Notice signed by an Authorized Officer of the Borrower.
(iii) the written opinion of the Loan Parties’ counsel, addressed to the Administrative Agent, each Issuing Bank and the Lenders, in substantially a form and containing assumptions and qualifications acceptable to the Administrative Agent and its counsel;
(iv) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying (A) that the Borrower is in pro forma compliance with the financial covenants set forth in Section 7.04 on the Funding Date, including computations demonstrating compliance in reasonable detail thereof; (B) as to the receipt by the Borrower of the proceeds of the Senior Notes in an amount that, together with the Term Loans made on the Funding Date, is not greater than $1,000,000,000; and (C) as to occurrence of the Spin Transaction;
(v) the (A) Historical Information and (B) the financial projections cash flows of the Borrower and its Subsidiaries on a consolidated basis, covering the Acquired Company for each of the three fiscal years 2015 through 2018 (inclusive), in each case on a consolidated basis;
(vi) a completed Perfection Certificate, dated most recently ended at least 90 days prior to the Funding Date and signed by an Authorized Officer (b) unaudited consolidated balance sheets and related unaudited statements of operations, stockholders’ equity and cash flows of the Borrower;
(vii) evidence that appropriate Uniform Commercial Code financing statements have been (or, on Borrower and the Acquired Company for each subsequent fiscal quarter ended at least 45 days prior to the Funding Date, will be) duly filed in such office or offices as may be necessary or, in the opinion of Administrative Agent, desirable to perfect the Administrative Agent’s Liens in and to the Collateral;
(viii) copies of the Certificate of Incorporation of each Loan Party, together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of incorporation;
(ix) copies, certified by the Secretary or Assistant Secretary of each of the Loan Parties, of its By-Laws and of its Board of Directors’ (or similar body) resolutions authorizing the execution of the Loan Documents entered into by it;
(x) an incumbency certificate, executed by the Secretary or Assistant Secretary of each of the Loan Parties, which shall identify by name and title and bear the original or facsimile signature of the officers of the Loan Parties authorized to sign the Loan Documents and the officers of the Borrower authorized to make borrowings hereunder, upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(xi) a certificate in form and substance reasonably satisfactory to the Administrative Agent, signed by an Authorized Officer of the Borrower, attesting that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Spin Transaction, are Solvent;
(xii) receipt by the Administrative Agent of updated Schedules 6.07, 6.08, 6.18, 7.03(a), 7.03(b), 7.03(d) and 7.03(i) to replace the corresponding Schedules and Annex attached hereto as of the Escrow Date in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, ; provided that the Lenders agree that such updated schedules shall be deemed to be satisfactory if such updated Schedules (i) do not differ from filing of financial statements complying with the corresponding Schedules attached hereto as of the Escrow Date in a manner that is material and adverse to the Lenders foregoing requirements on Form 10-K or (ii) are otherwise satisfactory to the Required Lenders (and any references to any such Schedules in this Credit Agreement shall thereafter refer to such Schedules Form 10-Q, as the same case may have been updated pursuant to this Section 5.01(b)(xii).
(c) (i) The Collateral and Guarantee Requirement shall have been satisfied (provided thatbe, solely with respect to by the matters expressly identified in Section 7.02(q), Borrower or the satisfaction of Acquired Company will satisfy the applicable conditions set forth in this clause (c) shall not be required on the Funding Date, and shall not be a condition to the obligations of the Lenders to make Loans hereunder on the Funding Date, but shall be required to be accomplished in accordance with Section 7.02(q)) and (ii) the Administrative Agent shall have received satisfactory evidence that all steps have been taken to perfect security interests in the Collateral (including delivery of any certificated Equity Interests and other physical, pledged collateral)4.
(d) The Administrative Agent shall have received evidence that the insurance required by Section 7.02(e) is in effect, together with endorsements naming the Administrative Agent, for the benefit of the Lenders, Issuing Banks and Swing Line Lender, as additional insured and loss payee thereunder to the extent required under Section 7.02(e).
(e) Since September 30, 2014, no fact, event or circumstance has occurred that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(f) The Administrative Agent shall have received the results of a recent Lien and judgment search in each relevant jurisdiction with respect to the Loan Parties, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted under Section 7.03(b).
(g) The Administrative Agent shall have received all documentation and other information reasonably requested by each Lender that is required for compliance with the Patriot Act or other “know your customer” and anti-money laundering rules and regulations (which requested information shall have been received at least five (5) Business Days prior to the Funding Date to the extent requested by the Lenders at least ten (10) Business Days prior to the Funding Date).
(h) The Administrative Agent (for the benefit of itself and the other parties entitled thereto) and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Funding Date (including fees for the account of the Lenders and fees, disbursements and charges of counsel to the Administrative Agent and the Arrangers), including to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date and such notice shall be conclusive and binding (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 1 contract
Sources: Backstop Bridge Term Loan Credit Agreement (Walgreens Boots Alliance, Inc.)
Funding Date. The obligations of the Lenders to make their respective Term Loans hereunder and the availability of the Revolving Facility Issuing Banks to issue Letters of Credit hereunder shall not become effective on until the first date on which each of the following conditions is satisfied (or waived in accordance with Section 9.03) which date shall occur prior to July 10, 2015 (it being understood and agreed that to the extent the Funding Date does not occur on or prior to July 10, 2015, this Agreement and the Commitments of the Lenders shall automatically terminate without any further action by the Borrower, the Administrative Agent or any other person9.02):
(a) The Effective Date shall have occurred.
(b) Since November 15, 2021, there shall not have occurred a Company Material Adverse Effect (as defined in either Funding Date Acquisition Agreement) that is continuing.
(c) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent:
(i) the Collateral Documents and the Guarantee Agreement, duly executed by each party thereto, together with:
(A) the certificates representing the shares of capital stock or other Equity Interests (in each case, to the extent certificated) required to be pledged by any Loan Party (including the Parent Guarantor and the Borrower) pursuant to the Collateral Agreements, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof,
(B) each promissory note (if any) required to be pledged by any Loan Party (including the Parent Guarantor the Borrower) pursuant to the Collateral Agreements, endorsed in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof,
(C) one or more intellectual property security agreements, duly executed and delivered by each Loan Party required to be party thereto pursuant to the Collateral Agreements,
(D) UCC-1 financing statements with respect to each Loan Party, in proper form for filing with the applicable Governmental Authority, and
(ii) except to the extent previously delivered pursuant to Section 4.01(b) (although in respect of Parent Guarantor, a certificate complying with the requirements of this Section 4.02(c)(ii) shall be delivered to reflect the appointment of the Replacement General Partner as general partner of Parent Guarantor in the period between the Effective Date and the Funding Date), a certificate of each Loan Party party to any Loan Document as of the Funding Date, dated as of the Funding Date and executed by a secretary, assistant secretary or other Responsible Officer thereof, which shall:
(A) certify that:
(1) attached thereto is a true and complete copy of the certificate or articles of incorporation, formation or organization (including all amendments thereto) of such Loan Party (and in relation to any Loan Party incorporated in Jersey, a copy of all consents to issue shares issued to it under the Control of Borrower (Jersey) Order 1958 and all other Jersey regulatory approvals, authorizations, consents, licenses, permits or registrations issued to it (if any)) certified as of a recent date by the relevant authority of its jurisdiction of incorporation, association, organization, formation or registration,
(2) such certificate or articles of incorporation, formation or organization of such Loan Party attached thereto have not been amended (except as attached thereto) since the date reflected thereon and are in full force and effect,
(3) attached thereto is a true and correct copy of the by-laws or operating, management, partnership or similar agreement of such Loan Party, together with all amendments thereto as of the Effective Date and such by-laws or operating, management, partnership or similar agreements are or is in full force and effect and
(4) attached thereto is a true and complete copy of the resolutions or written consent, as applicable, of its board of directors, board of managers, sole member, general partner, shareholders or other applicable governing body authorizing the execution, delivery and performance of the Loan Documents, which resolutions or consent have not been modified, rescinded or amended (other than as attached thereto) and are in full force and effect, and
(B) identify by name and title and bear the signatures of the officers, managers, directors or authorized signatories of such Loan Party authorized to sign the Loan Documents to which such Loan Party is a party on the Effective Date and (ii) a good standing (or equivalent) certificate as of a recent date for such Loan Party from the relevant authority of its jurisdiction of incorporation, association, organization, formation or registration (to the extent applicable) and a bring down report from the corporate service provider from which such certificates were obtained verifying that such Loan Party is in good standing on the Funding Date (or, if not reasonably practicable to receive such bring down report on the Funding Date, on the day that is one (1) Business Day prior to the Funding Date).
(d) The Administrative Agent shall have received from each party hereto or thereto either a counterpart of this Agreement and each other Loan Document signed on behalf of such party or written evidence satisfactory opinion (addressed to the Administrative Agent and the Lenders and dated the Funding Date) of (which may include facsimile or electronic transmission of a signed signature page of such partyi) that such party has signed a counterpart of this Agreement and each other Loan Document to which it is a partySkadden, includingArps, without limitationSlate, the Collateral Agreement and such other Loan Documents as the Administrative Agent or its ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, United States counsel may have reasonably requested.
(b) The Borrower has furnished to the Administrative Agent each of Loan Parties, (ii) Walkers (Cayman) LLP, Cayman Islands counsel to the followingLenders and (iii) Walkers (Jersey) LLP, with sufficient copies for the Lenders, all in form and substance satisfactory Jersey counsel to the Administrative Agent and the Lenders:
(i) a certificate, each in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(e) The Administrative Agent shall have received a Solvency Certificate, dated the Funding Date and signed by an Authorized a Financial Officer of the Parent Guarantor.
(f) The Administrative Agent shall have received a certificate, dated the Funding Date and signed by a Responsible Officer of each of the Parent Guarantor and the Borrower, certifying that all there have been no material changes (or, in the case of the representations Parent Guarantor, no changes that would be materially adverse to the Lenders) to the documents delivered pursuant to Section 4.01(b) with respect to the Parent Guarantor or the Borrower, in this Agreement are each case, since the Effective Date.
(g) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03.
(i) The Specified Representations shall be true and correct in all material respects (except provided that, any such representations and warranties that any representation and warranty that is are qualified as to “materiality” or “by Material Adverse Effect” Effect or other materiality qualifier shall be true and correct in all respects) on and as of the Funding Date, such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be are true and correct in all material respects (except that or, in the case of any representation and warranty that is such representations or warranties qualified as to “materiality” or “by Material Adverse Effect” shall be true and correct Effect or other materiality qualifier, in all respects) as of such earlier date and no Default or Unmatured Default has occurred and is continuing or would result from the Advance of the Term Loans on the Funding Date;
(ii) a duly executed Borrowing/Election Notice signed by the Specified Acquisition Agreement Representations shall be true and correct in all respects as of such date except to the extent that such representations and warranties specifically refer to an Authorized Officer earlier date, in which case they are true and correct in all respects as of the Borrowersuch earlier date.
(iiii) the written opinion of the Loan Parties’ counsel, addressed to the Administrative Agent, each Issuing Bank and the Lenders, in substantially a form and containing assumptions and qualifications acceptable to the The Administrative Agent and its counsel;
(iv) shall have received a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying (A) that the Borrower is in pro forma compliance with the financial covenants set forth in Section 7.04 on the Funding Date, including computations demonstrating compliance in reasonable detail thereof; (B) as to the receipt by the Borrower of the proceeds of the Senior Notes in an amount that, together with the Term Loans made on the Funding Date, is not greater than $1,000,000,000; and (C) as to occurrence of the Spin Transaction;
(v) the (A) Historical Information and (B) the financial projections of the Borrower and its Subsidiaries on a consolidated basis, covering fiscal years 2015 through 2018 (inclusive), in each case on a consolidated basis;
(vi) a completed Perfection Certificate, dated the Funding Date and signed by an Authorized Officer of the Borrower;
(vii) evidence that appropriate Uniform Commercial Code financing statements have been (or, on the Funding Date, will be) duly filed in such office or offices as may be necessary or, in the opinion of Administrative Agent, desirable to perfect the Administrative Agent’s Liens in and to the Collateral;
(viii) copies of the Certificate of Incorporation of each Loan Party, together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of incorporation;
(ix) copies, certified by the Secretary or Assistant Secretary of each of the Loan Parties, of its By-Laws and of its Board of Directors’ (or similar body) resolutions authorizing the execution of the Loan Documents entered into by it;
(x) an incumbency certificate, executed by the Secretary or Assistant Secretary of each of the Loan Parties, which shall identify by name and title and bear the original or facsimile signature of the officers of the Loan Parties authorized to sign the Loan Documents and the officers of the Borrower authorized to make borrowings hereunder, upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(xi) a certificate in form and substance reasonably satisfactory to the Administrative Agent, signed by an Authorized Responsible Officer of the Borrower, attesting that the Borrower and its Subsidiaries, on a consolidated basis after giving effect certifying as to the Spin Transactionconditions set forth in clauses 4.02(b), are Solvent;(h), (k) and (l).
(xiij) receipt by the The Administrative Agent of shall have received schedules to this Agreement, updated Schedules 6.07, 6.08, 6.18, 7.03(a), 7.03(b), 7.03(d) and 7.03(i) to replace the corresponding Schedules and Annex attached hereto as of the Escrow Funding Date and in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, provided that that, (i) the Administrative Agent and the Lenders agree that such updated schedules shall be deemed to be satisfactory if such updated Schedules (i) schedules do not differ from the corresponding Schedules schedules attached hereto as of the Escrow Effective Date in a manner that is material and adverse to the Lenders or (ii) are otherwise satisfactory to the Required Lenders (and any references to any such Schedules in this Credit Agreement shall thereafter refer to such Schedules as the same may have been updated pursuant to this Section 5.01(b)(xii).
(c) (i) The Collateral and Guarantee Requirement shall have been satisfied (provided that, solely with respect to the matters expressly identified in Section 7.02(q), the satisfaction of the conditions set forth in this clause (c) shall not be required on the Funding Date, and shall not be a condition to the obligations of the Lenders to make Loans hereunder on the Funding Date, but shall be required to be accomplished in accordance with Section 7.02(q)) and (ii) the Administrative Agent Lenders shall be deemed to have consented to any such updated schedules unless the Required Lenders shall have received satisfactory evidence that all steps have been taken to perfect security interests objected in the Collateral writing within three (including delivery 3) Business Days after receipt of any certificated Equity Interests and other physical, pledged collateral)such updated schedules.
(dk) The Existing Credit Agreement Refinancing shall have occurred or will occur on the Funding Date.
(l) The Funding Date Acquisitions shall have been, or substantially concurrently with the initial Borrowing under this Agreement shall be, consummated in all material respects in accordance with the Funding Date Acquisition Agreements, without giving effect to any modification, amendments, consents or waivers to, or any actions taken by the Parent Guarantor, the Borrower or any of its Affiliates in respect of, the Funding Date Acquisition Agreements that are material and adverse to the Lenders or the Arrangers without the prior written consent of the Arrangers; provided that, (i) any change to the definition of “Company Material Adverse Effect” (as defined in either Funding Date Acquisition Agreement) without such consent shall be deemed to be materially adverse to the Lenders and the Arrangers, and (ii) any change in the purchase price in connection with either Funding Date Acquisition shall not be deemed to be material and adverse to the interests of the Lenders and the Arrangers; provided that, (A) any resulting reduction in each case shall be allocated to reduce the aggregate principal amount of the Term Loans, and (B) any increase in purchase price (excluding any purchase price adjustments in accordance with the terms of either Funding Date Acquisition Agreement) shall be funded with the proceeds of an equity contribution.
(i) The Administrative Agent shall have received evidence that the insurance required by Section 7.02(ereceived, at least three (3) is in effect, together with endorsements naming the Administrative Agent, for the benefit of the Lenders, Issuing Banks and Swing Line Lender, as additional insured and loss payee thereunder Business Days prior to the extent required under Section 7.02(e).
(e) Since September 30Funding Date, 2014, no fact, event or circumstance has occurred that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(f) The Administrative Agent shall have received the results of a recent Lien and judgment search in each relevant jurisdiction with respect to the Loan Parties, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted under Section 7.03(b).
(g) The Administrative Agent shall have received all documentation and other information reasonably regarding the Guarantors requested by each Lender that is required for compliance in connection with the Patriot Act or other applicable “know your customer” and anti-money laundering rules and regulations (which requested information shall have been received at least five (5) Business Days prior to regulations, including the Funding Date Patriot Act, to the extent requested by the Lenders in writing at least ten (10) Business Days prior to the Funding Date and (ii) to the extent any Guarantor qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least three (3) Business Days prior to the Funding Date, any Lender that has requested, in a written notice to the Borrower at least three (3) Business Days prior to the Effective Date, a Beneficial Ownership Certification in relation to such Guarantor shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (m) shall be deemed to be satisfied).
(hn) The Administrative Agent (for the benefit of itself and the other parties entitled thereto) and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Funding Date (including fees for the account of the Lenders and feesDate, disbursements and charges of counsel to the Administrative Agent and the Arrangers)including, including to the extent invoicedinvoiced at least two (2) Business Days prior to the Funding Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by any Loan Party under any Loan Document.
(o) [Reserved.]
(p) To the extent requested at least three (3) Business Days prior to the Funding Date, a Note executed by the Borrower hereunderin favor of each Lender which has requested a Note pursuant to Section 2.10(e) shall have been received by each such Lender.
(q) The Administrative Agent shall have received:
(i) duly completed grantor consent forms signed by the relevant grantor and any individual named therein as the contact for service for the applicable grantor consenting to the inclusion of their name and contact details in a financing statement on the SIR against the relevant grantor in respect of the security interest to be created pursuant to each Jersey Collateral Agreement,
(ii) a search on the SIR made against each grantor on the Funding Date showing that no financing statement have been registered against it (other than in favor of the Administrative Agent),
(iii) a verification statement issued by the Registrar of the SIR indicating that a financing statement has been successfully registered in respect of each grantor under each Jersey Collateral Agreement,
(iv) a copy of each duly executed notice and acknowledgement required to be given in connection with each Jersey Collateral Agreement, and
(v) in relation to the Borrower and Obagi Holdco 2 Limited, a copy of a special resolution amending its articles of association to permit the taking and enforcement of security without, inter alia, a right for directors to refuse, in their discretion, to register a transfer of shares and an extract of its register of members including an annotation identifying the shares over which security has been granted, duly authorized by an authorized signatory of that company as at the date of the relevant Jersey Collateral Agreement. provided that, notwithstanding the foregoing, to the extent that any security interest in any Collateral is not, or cannot be, provided and/or perfected on the Funding Date (other than the pledge and perfection of the security interests (1) in the certificated equity securities of the Borrower and any Domestic Subsidiary and (2) in other assets with respect to which a lien may be perfected by the filing of a UCC financing statement) after the Loan Parties’ use of commercially reasonable efforts to do so or without undue burden or expense, then the provision and/or perfection of a security interest in such Collateral shall not constitute a condition precedent under this Section 4.02 but instead shall be required to be delivered after the Funding Date pursuant to arrangements to be mutually agreed by the Borrower and the Administrative Agent not later than ninety (90) days after the Funding Date or such longer period as may be agreed by the Administrative Agent in its reasonable discretion. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date Date, and such notice shall be conclusive and binding binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with the Section 9.02) on or prior to 5:00 p.m., New York City time on August 15, 2022 (and, in the event such conditions are not so satisfied or waived, this Agreement and the Commitments shall terminate at such time).
Appears in 1 contract
Sources: Credit Agreement (Waldencast PLC)
Funding Date. The obligations of the Lenders to make their respective Term Loans hereunder and the availability of the Revolving Facility Issuing Banks to issue Letters of Credit hereunder shall not become effective on until the first date on which each of the following conditions is satisfied (or waived in accordance with Section 9.03) which date shall occur prior to July 10, 2015 (it being understood and agreed that to the extent the Funding Date does not occur on or prior to July 10, 2015, this Agreement and the Commitments of the Lenders shall automatically terminate without any further action by the Borrower, the Administrative Agent or any other person9.02):
(a) The Effective Date shall have occurred.
(b) Since November 15, 2021, there shall not have occurred a Company Material Adverse Effect (as defined in either Funding Date Acquisition Agreement) that is continuing.
(c) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent:
(i) the Collateral Documents and the Guarantee Agreement, duly executed by each party thereto, together with:
(A) the certificates representing the shares of capital stock or other Equity Interests (in each case, to the extent certificated) required to be pledged by any Loan Party (including the Parent Guarantor and the Borrower) pursuant to the Collateral Agreements, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof,
(B) each promissory note (if any) required to be pledged by any Loan Party (including the Parent Guarantor the Borrower) pursuant to the Collateral Agreements, endorsed in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof,
(C) one or more intellectual property security agreements, duly executed and delivered by each Loan Party required to be party thereto pursuant to the Collateral Agreements,
(D) UCC-1 financing statements with respect to each Loan Party, in proper form for filing with the applicable Governmental Authority, and
(ii) except to the extent previously delivered pursuant to Section 4.01(b) (although in respect of Parent Guarantor, a certificate complying with the requirements of this Section 4.02(c)(ii) shall be delivered to reflect the appointment of the Replacement General Partner as general partner of Parent Guarantor in the period between the Effective Date and the Funding Date), a certificate of each Loan Party party to any Loan Document as of the Funding Date, dated as of the Funding Date and executed by a secretary, assistant secretary or other Responsible Officer thereof, which shall:
(A) certify that:
(1) attached thereto is a true and complete copy of the certificate or articles of incorporation, formation or organization (including all amendments thereto) of such Loan Party (and in relation to any Loan Party incorporated in Jersey, a copy of all consents to issue shares issued to it under the Control of Borrower (Jersey) Order 1958 and all other Jersey regulatory approvals, authorizations, consents, licenses, permits or registrations issued to it (if any)) certified as of a recent date by the relevant authority of its jurisdiction of incorporation, association, organization, formation or registration,
(2) such certificate or articles of incorporation, formation or organization of such Loan Party attached thereto have not been amended (except as attached thereto) since the date reflected thereon and are in full force and effect,
(3) attached thereto is a true and correct copy of the by-laws or operating, management, partnership or similar agreement of such Loan Party, together with all amendments thereto as of the Effective Date and such by-laws or operating, management, partnership or similar agreements are or is in full force and effect and
(4) attached thereto is a true and complete copy of the resolutions or written consent, as applicable, of its board of directors, board of managers, sole member, general partner, shareholders or other applicable governing body authorizing the execution, delivery and performance of the Loan Documents, which resolutions or consent have not been modified, rescinded or amended (other than as attached thereto) and are in full force and effect, and
(B) identify by name and title and bear the signatures of the officers, managers, directors or authorized signatories of such Loan Party authorized to sign the Loan Documents to which such Loan Party is a party on the Effective Date and (ii) a good standing (or equivalent) certificate as of a recent date for such Loan Party from the relevant authority of its jurisdiction of incorporation, association, organization, formation or registration (to the extent applicable) and a bring down report from the corporate service provider from which such certificates were obtained verifying that such Loan Party is in good standing on the Funding Date (or, if not reasonably practicable to receive such bring down report on the Funding Date, on the day that is one (1) Business Day prior to the Funding Date).
(d) The Administrative Agent shall have received from each party hereto or thereto either a counterpart of this Agreement and each other Loan Document signed on behalf of such party or written evidence satisfactory opinion (addressed to the Administrative Agent and the Lenders and dated the Funding Date) of (which may include facsimile or electronic transmission of a signed signature page of such partyi) that such party has signed a counterpart of this Agreement and each other Loan Document to which it is a party▇▇▇▇▇▇▇, includingArps, without limitationSlate, the Collateral Agreement and such other Loan Documents as the Administrative Agent or its ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, United States counsel may have reasonably requested.
(b) The Borrower has furnished to the Administrative Agent each of Loan Parties, (ii) Walkers (Cayman) LLP, Cayman Islands counsel to the followingLenders and (iii) Walkers (Jersey) LLP, with sufficient copies for the Lenders, all in form and substance satisfactory Jersey counsel to the Administrative Agent and the Lenders:
(i) a certificate, each in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(e) The Administrative Agent shall have received a Solvency Certificate, dated the Funding Date and signed by an Authorized a Financial Officer of the Parent Guarantor.
(f) The Administrative Agent shall have received a certificate, dated the Funding Date and signed by a Responsible Officer of each of the Parent Guarantor and the Borrower, certifying that all there have been no material changes (or, in the case of the representations Parent Guarantor, no changes that would be materially adverse to the Lenders) to the documents delivered pursuant to Section 4.01(b) with respect to the Parent Guarantor or the Borrower, in this Agreement are each case, since the Effective Date.
(g) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03.
(h) (i) The Specified Representations shall be true and correct in all material respects (except provided that, any such representations and warranties that any representation and warranty that is are qualified as to “materiality” or “by Material Adverse Effect” Effect or other materiality qualifier shall be true and correct in all respects) on and as of the Funding Date, such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be are true and correct in all material respects (except that or, in the case of any representation and warranty that is such representations or warranties qualified as to “materiality” or “by Material Adverse Effect” shall be true and correct Effect or other materiality qualifier, in all respects) as of such earlier date and no Default or Unmatured Default has occurred and is continuing or would result from the Advance of the Term Loans on the Funding Date;
(ii) a duly executed Borrowing/Election Notice signed by the Specified Acquisition Agreement Representations shall be true and correct in all respects as of such date except to the extent that such representations and warranties specifically refer to an Authorized Officer earlier date, in which case they are true and correct in all respects as of the Borrowersuch earlier date.
(iiii) the written opinion of the Loan Parties’ counsel, addressed to the Administrative Agent, each Issuing Bank and the Lenders, in substantially a form and containing assumptions and qualifications acceptable to the The Administrative Agent and its counsel;
(iv) shall have received a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying (A) that the Borrower is in pro forma compliance with the financial covenants set forth in Section 7.04 on the Funding Date, including computations demonstrating compliance in reasonable detail thereof; (B) as to the receipt by the Borrower of the proceeds of the Senior Notes in an amount that, together with the Term Loans made on the Funding Date, is not greater than $1,000,000,000; and (C) as to occurrence of the Spin Transaction;
(v) the (A) Historical Information and (B) the financial projections of the Borrower and its Subsidiaries on a consolidated basis, covering fiscal years 2015 through 2018 (inclusive), in each case on a consolidated basis;
(vi) a completed Perfection Certificate, dated the Funding Date and signed by an Authorized Officer of the Borrower;
(vii) evidence that appropriate Uniform Commercial Code financing statements have been (or, on the Funding Date, will be) duly filed in such office or offices as may be necessary or, in the opinion of Administrative Agent, desirable to perfect the Administrative Agent’s Liens in and to the Collateral;
(viii) copies of the Certificate of Incorporation of each Loan Party, together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of incorporation;
(ix) copies, certified by the Secretary or Assistant Secretary of each of the Loan Parties, of its By-Laws and of its Board of Directors’ (or similar body) resolutions authorizing the execution of the Loan Documents entered into by it;
(x) an incumbency certificate, executed by the Secretary or Assistant Secretary of each of the Loan Parties, which shall identify by name and title and bear the original or facsimile signature of the officers of the Loan Parties authorized to sign the Loan Documents and the officers of the Borrower authorized to make borrowings hereunder, upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(xi) a certificate in form and substance reasonably satisfactory to the Administrative Agent, signed by an Authorized Responsible Officer of the Borrower, attesting that the Borrower and its Subsidiaries, on a consolidated basis after giving effect certifying as to the Spin Transactionconditions set forth in clauses 4.02(b), are Solvent;(h), (k) and (l).
(xiij) receipt by the The Administrative Agent of shall have received schedules to this Agreement, updated Schedules 6.07, 6.08, 6.18, 7.03(a), 7.03(b), 7.03(d) and 7.03(i) to replace the corresponding Schedules and Annex attached hereto as of the Escrow Funding Date and in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, provided that that, (i) the Administrative Agent and the Lenders agree that such updated schedules shall be deemed to be satisfactory if such updated Schedules (i) schedules do not differ from the corresponding Schedules schedules attached hereto as of the Escrow Effective Date in a manner that is material and adverse to the Lenders or (ii) are otherwise satisfactory to the Required Lenders (and any references to any such Schedules in this Credit Agreement shall thereafter refer to such Schedules as the same may have been updated pursuant to this Section 5.01(b)(xii).
(c) (i) The Collateral and Guarantee Requirement shall have been satisfied (provided that, solely with respect to the matters expressly identified in Section 7.02(q), the satisfaction of the conditions set forth in this clause (c) shall not be required on the Funding Date, and shall not be a condition to the obligations of the Lenders to make Loans hereunder on the Funding Date, but shall be required to be accomplished in accordance with Section 7.02(q)) and (ii) the Administrative Agent Lenders shall be deemed to have consented to any such updated schedules unless the Required Lenders shall have received satisfactory evidence that all steps have been taken to perfect security interests objected in the Collateral writing within three (including delivery 3) Business Days after receipt of any certificated Equity Interests and other physical, pledged collateral)such updated schedules.
(dk) The Existing Credit Agreement Refinancing shall have occurred or will occur on the Funding Date.
(l) The Funding Date Acquisitions shall have been, or substantially concurrently with the initial Borrowing under this Agreement shall be, consummated in all material respects in accordance with the Funding Date Acquisition Agreements, without giving effect to any modification, amendments, consents or waivers to, or any actions taken by the Parent Guarantor, the Borrower or any of its Affiliates in respect of, the Funding Date Acquisition Agreements that are material and adverse to the Lenders or the Arrangers without the prior written consent of the Arrangers; provided that, (i) any change to the definition of “Company Material Adverse Effect” (as defined in either Funding Date Acquisition Agreement) without such consent shall be deemed to be materially adverse to the Lenders and the Arrangers, and (ii) any change in the purchase price in connection with either Funding Date Acquisition shall not be deemed to be material and adverse to the interests of the Lenders and the Arrangers; provided that, (A) any resulting reduction in each case shall be allocated to reduce the aggregate principal amount of the Term Loans, and (B) any increase in purchase price (excluding any purchase price adjustments in accordance with the terms of either Funding Date Acquisition Agreement) shall be funded with the proceeds of an equity contribution.
(i) The Administrative Agent shall have received evidence that the insurance required by Section 7.02(e) is in effectreceived, together with endorsements naming the Administrative Agent, for the benefit of the Lenders, Issuing Banks and Swing Line Lender, as additional insured and loss payee thereunder to the extent required under Section 7.02(e).
(e) Since September 30, 2014, no fact, event or circumstance has occurred that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(f) The Administrative Agent shall have received the results of a recent Lien and judgment search in each relevant jurisdiction with respect to the Loan Parties, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted under Section 7.03(b).
(g) The Administrative Agent shall have received all documentation and other information reasonably requested by each Lender that is required for compliance with the Patriot Act or other “know your customer” and anti-money laundering rules and regulations (which requested information shall have been received at least five three (53) Business Days prior to the Funding Date Date, all documentation and other information regarding the Guarantors requested in connection with applicable “know your customer” and anti‑money laundering rules and regulations, including the Patriot Act, to the extent requested by the Lenders in writing at least ten (10) Business Days prior to the Funding Date and (ii) to the extent any Guarantor qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least three (3) Business Days prior to the Funding Date, any Lender that has requested, in a written notice to the Borrower at least three (3) Business Days prior to the Effective Date, a Beneficial Ownership Certification in relation to such Guarantor shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (m) shall be deemed to be satisfied).
(hn) The Administrative Agent (for the benefit of itself and the other parties entitled thereto) and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Funding Date (including fees for the account of the Lenders and feesDate, disbursements and charges of counsel to the Administrative Agent and the Arrangers)including, including to the extent invoicedinvoiced at least two (2) Business Days prior to the Funding Date, reimbursement or payment of all reasonable and documented out-of-pocket out‑of‑pocket expenses required to be reimbursed or paid by any Loan Party under any Loan Document.
(o) [Reserved.]
(p) To the extent requested at least three (3) Business Days prior to the Funding Date, a Note executed by the Borrower hereunderin favor of each Lender which has requested a Note pursuant to Section 2.10(e) shall have been received by each such Lender.
(q) The Administrative Agent shall have received:
(i) duly completed grantor consent forms signed by the relevant grantor and any individual named therein as the contact for service for the applicable grantor consenting to the inclusion of their name and contact details in a financing statement on the SIR against the relevant grantor in respect of the security interest to be created pursuant to each Jersey Collateral Agreement,
(ii) a search on the SIR made against each grantor on the Funding Date showing that no financing statement have been registered against it (other than in favor of the Administrative Agent),
(iii) a verification statement issued by the Registrar of the SIR indicating that a financing statement has been successfully registered in respect of each grantor under each Jersey Collateral Agreement,
(iv) a copy of each duly executed notice and acknowledgement required to be given in connection with each Jersey Collateral Agreement, and
(v) in relation to the Borrower and Obagi Holdco 2 Limited, a copy of a special resolution amending its articles of association to permit the taking and enforcement of security without, inter alia, a right for directors to refuse, in their discretion, to register a transfer of shares and an extract of its register of members including an annotation identifying the shares over which security has been granted, duly authorized by an authorized signatory of that company as at the date of the relevant Jersey Collateral Agreement. provided that, notwithstanding the foregoing, to the extent that any security interest in any Collateral is not, or cannot be, provided and/or perfected on the Funding Date (other than the pledge and perfection of the security interests (1) in the certificated equity securities of the Borrower and any Domestic Subsidiary and (2) in other assets with respect to which a lien may be perfected by the filing of a UCC financing statement) after the Loan Parties’ use of commercially reasonable efforts to do so or without undue burden or expense, then the provision and/or perfection of a security interest in such Collateral shall not constitute a condition precedent under this Section 4.02 but instead shall be required to be delivered after the Funding Date pursuant to arrangements to be mutually agreed by the Borrower and the Administrative Agent not later than ninety (90) days after the Funding Date or such longer period as may be agreed by the Administrative Agent in its reasonable discretion. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date Date, and such notice shall be conclusive and binding binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with the Section 9.02) on or prior to 5:00 p.m., New York City time on August 15, 2022 (and, in the event such conditions are not so satisfied or waived, this Agreement and the Commitments shall terminate at such time).
Appears in 1 contract
Sources: Credit Agreement (Waldencast PLC)
Funding Date. The obligations obligation of the Lenders each Lender to make their respective Term Loans its Loan hereunder and the availability of the Revolving Facility shall become effective in an amount equal to its Commitment on the first date on which each of Funding Date is subject solely to the following conditions is satisfied satisfaction (or waived waiver in accordance with Section 9.0310.02) which date shall occur prior to July 10, 2015 (it being understood and agreed that to the extent the Funding Date does not occur on or prior to July 10, 2015, this Agreement and the Commitments of the Lenders shall automatically terminate without any further action by the Borrowerfollowing conditions, the Administrative Agent or any and no other person):conditions:
(a) The the Effective Date has occurred;
(b) since the Systems Control Acquisition Signing Date, no Material Adverse Effect (as defined in the Systems Control Acquisition Agreement as in effect on the Systems Control Acquisition Signing Date, herein, a “Systems Control Material Adverse Change”) shall have occurred;
(c) the Administrative Agent shall have received from each party hereto or thereto either a counterpart of this Agreement and each other Loan Document signed on behalf of such party or written evidence satisfactory to the Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of such party) that such party has signed a counterpart of this Agreement and each other Loan Document to which it is a party, including, without limitation, the Collateral Agreement and such other Loan Documents as the Administrative Agent or its counsel may have reasonably requested.
(b) The Borrower has furnished to the Administrative Agent each of the following, with sufficient copies for the Lenders, all in form and substance satisfactory to the Administrative Agent and the Lenders:
(i) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer notice of the Borrower’s intent to borrow if required by Article II;
(d) both before and after giving effect to the Systems Control Acquisition, certifying that all the representations and warranties of the representations Borrower set forth in this Agreement are Article IV (other than the representation set forth in Section 4.07 and the representation set forth in the last sentence of Section 4.06) shall be true and correct in all material respects (except that any representation to the extent such representations and warranty that is warranties are qualified as to with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall be true and correct in all respects) on and as of the Funding Datedate of such Borrowing with the same effect as though such representations and warranties had been made on and as of such date, except to the extent that such representations and warranties specifically refer expressly relate to an earlier date, in which case they such representations and warranties shall be true and correct in all material respects (except that any representation to the extent such representations and warranty that is warranties are qualified as to with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall be true and correct in all respects) as of such earlier date date;
(e) at the time of (and after giving effect to) such Borrowing and the consummation of the Systems Control Acquisition, no Default or Unmatured Default has shall have occurred and is continuing be continuing; and
(f) the Systems Control Acquisition shall have been consummated, or would result from substantially concurrently with the Advance funding of the Term Loans on the Funding Date;
Date shall be consummated, in all material respects pursuant to and on the terms set forth in the Systems Control Acquisition Agreement (ii) a duly executed Borrowing/Election Notice signed by an Authorized Officer of the Borrower.
(iii) the written opinion of the Loan Parties’ counsel, addressed to the Administrative Agent, each Issuing Bank and the Lenders, in substantially a form and containing assumptions and qualifications acceptable Borrower shall provide to the Administrative Agent and its counsel;
(iv) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying (A) that the Borrower is in pro forma compliance with the financial covenants set forth in Section 7.04 on the Funding Date, including computations demonstrating compliance in reasonable detail thereof; (B) certification as to the receipt by the Borrower of the proceeds of the Senior Notes in an amount that, together with the Term Loans made on the Funding Date, is not greater than $1,000,000,000; and (C) as to occurrence of the Spin Transaction;
(v) the (A) Historical Information and (B) the financial projections of the Borrower and its Subsidiaries on a consolidated basis, covering fiscal years 2015 through 2018 (inclusive), in each case on a consolidated basis;
(vi) a completed Perfection Certificate, dated the Funding Date and signed by an Authorized Officer of the Borrower;
(vii) evidence that appropriate Uniform Commercial Code financing statements have been (or, on the Funding Date, will be) duly filed in such office or offices as may be necessary or, in the opinion of Administrative Agent, desirable to perfect the Administrative Agent’s Liens in and to the Collateral;
(viii) copies of the Certificate of Incorporation of each Loan Party, together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of incorporation;
(ix) copies, certified by the Secretary or Assistant Secretary of each of the Loan Parties, of its By-Laws and of its Board of Directors’ (or similar body) resolutions authorizing the execution of the Loan Documents entered into by it;
(x) an incumbency certificate, executed by the Secretary or Assistant Secretary of each of the Loan Parties, which shall identify by name and title and bear the original or facsimile signature of the officers of the Loan Parties authorized to sign the Loan Documents and the officers of the Borrower authorized to make borrowings hereunder, upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(xi) a certificate in form and substance reasonably satisfactory to the Administrative Agent, signed by an Authorized Officer of the Borrower, attesting that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Spin Transaction, are Solvent;
(xii) receipt by the Administrative Agent of updated Schedules 6.07, 6.08, 6.18, 7.03(a), 7.03(b), 7.03(d) and 7.03(i) to replace the corresponding Schedules and Annex attached hereto as of the Escrow Date in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, provided that the Lenders agree that such updated schedules shall be deemed to be satisfactory if such updated Schedules (i) do not differ from the corresponding Schedules attached hereto as of the Escrow Date in a manner that is material and adverse to the Lenders or (ii) are otherwise satisfactory to the Required Lenders (and any references to any such Schedules in this Credit Agreement shall thereafter refer to such Schedules as the same may have been updated pursuant to this Section 5.01(b)(xii).
(c) (i) The Collateral and Guarantee Requirement shall have been satisfied (provided that, solely with respect to the matters expressly identified in Section 7.02(q), the satisfaction of the conditions set forth in this clause (c) shall not be required f). The Borrowing on the Funding Date, Date shall be deemed to constitute a representation and shall not be a condition warranty by the Borrower on the date thereof as to the obligations of the Lenders to make Loans hereunder on the Funding Datematters specified in paragraphs (b), but shall be required to be accomplished in accordance with Section 7.02(q)(d) and (ii) the Administrative Agent shall have received satisfactory evidence that all steps have been taken to perfect security interests in the Collateral (including delivery of any certificated Equity Interests and other physical, pledged collateral).
(d) The Administrative Agent shall have received evidence that the insurance required by Section 7.02(e) is in effect, together with endorsements naming the Administrative Agent, for the benefit of the Lenders, Issuing Banks and Swing Line Lender, as additional insured and loss payee thereunder to the extent required under Section 7.02(e).
(e) Since September 30, 2014, no fact, event or circumstance has occurred that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effectof this Section.
(f) The Administrative Agent shall have received the results of a recent Lien and judgment search in each relevant jurisdiction with respect to the Loan Parties, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted under Section 7.03(b).
(g) The Administrative Agent shall have received all documentation and other information reasonably requested by each Lender that is required for compliance with the Patriot Act or other “know your customer” and anti-money laundering rules and regulations (which requested information shall have been received at least five (5) Business Days prior to the Funding Date to the extent requested by the Lenders at least ten (10) Business Days prior to the Funding Date).
(h) The Administrative Agent (for the benefit of itself and the other parties entitled thereto) and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Funding Date (including fees for the account of the Lenders and fees, disbursements and charges of counsel to the Administrative Agent and the Arrangers), including to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date and such notice shall be conclusive and binding (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 1 contract
Sources: Term Loan Agreement (Hubbell Inc)
Funding Date. The obligations obligation of the Lenders each Lender to make their respective Term Loans its Loan hereunder and the availability of the Revolving Facility shall become effective in an amount equal to its Commitment on the first date on which each of Funding Date is subject solely to the following conditions is satisfied satisfaction (or waived waiver in accordance with Section 9.0310.02) which date shall occur prior to July 10of the following conditions, 2015 and no other conditions:
(a) the Effective Date has occurred;
(b) since September 30, 2017 and except as expressly contemplated by the Meter Readings Acquisition Agreement or as set forth in the Disclosure Schedules (as defined in, and prepared and delivered as part of, the Meter Readings Acquisition Agreement (it being understood that information disclosed on one section of the Disclosure Schedules shall be deemed to be disclosed on another section of the Disclosure Schedules or be deemed to be an exception to another representation and agreed that warranty in Article V of the Meter Readings Acquisition Agreement, in each case, if the relevance of such information to such other section of the extent Disclosure Schedules is reasonably apparent on its face)), there has not been any Material Adverse Change (as defined in the Meter Readings Acquisition Agreement as in effect on the Meter Readings Acquisition Signing Date, herein, a “Meter Readings Material Adverse Change”);
(c) there shall not have occurred a Meter Readings Material Adverse Change since the Meter Readings Acquisition Signing Date;
(d) the Meter Readings Acquisition shall have been consummated, or substantially concurrently with the funding of the Loans on the Funding Date does shall be consummated, in all material respects pursuant to and on the terms set forth in the Meter Readings Acquisition Agreement; provided that no amendment, modification, consent or waiver of any term thereof (but, in the case of a modification, consent or waiver of the conditions to closing set forth in Article IV of the Meter Readings Acquisition Agreement, no such modification, consent or waiver by the Borrower or any of its Subsidiaries) (other than any such amendment, modification, consent or waiver that is not occur materially adverse to any interests of the Arrangers or any of the Lenders) shall be made or granted, as the case may be, without the prior written consent of the Arrangers (such consent not to be unreasonably withheld or delayed) (it being understood that (i) any change in the cash consideration payable (excluding any decrease of 10% or less) set forth in the Meter Readings Acquisition Agreement on or prior the Meter Readings Acquisition Signing Date and (ii) any change in the “Xerox provisions” set forth in the Meter Readings Acquisition Agreement on the Meter Readings Acquisition Signing Date, in each case, will be deemed to July 10, 2015, this Agreement and be materially adverse to the Commitments interests of the Lenders shall automatically terminate without any further action by and will require the Borrower, prior written consent of the Administrative Agent or any other person):Arrangers);
(ae) The the Administrative Agent shall have received from (i) in respect of each party hereto of the Borrower and Meter Readings Holding LLC (the “Meter Readings Operating Sub”), (x) U.S. GAAP audited consolidated balance sheets for the two most recently completed fiscal years ended at least 90 days prior to the Funding Date and (y) related consolidated statements of income, stockholders’ equity and cash flows for the three most recently completed fiscal years ended at least 90 days prior to the Funding Date and (ii) U.S. GAAP unaudited consolidated balance sheets and related consolidated statements of income, stockholders’ equity and cash flows of each of the Borrower and the Meter Readings Operating Sub for each subsequent fiscal quarter ended at least 45 days before the Funding Date (and comparable periods for the prior fiscal year); provided, it is understood and agreed that, in the case of the Borrower, the filing of the required financial statements on Form 10-K or thereto either a counterpart Form 10-Q within the time periods required thereby will satisfy the requirements of the Borrower under this Agreement and each other Loan Document signed on behalf of such party or written evidence satisfactory to Section 3.02(e);
(f) the Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of such party) that such party has signed a counterpart of this Agreement and each other Loan Document to which it is a party, including, without limitation, the Collateral Agreement and such other Loan Documents as the Administrative Agent or its counsel may shall have reasonably requested.
(b) The Borrower has furnished to the Administrative Agent each of the following, with sufficient copies for the Lenders, all in form and substance satisfactory to the Administrative Agent and the Lendersreceived:
(i) a certificate, written Borrowing Request in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer respect of the Borrower, certifying that all of the representations in this Agreement are true and correct in all material respects (except that any representation and warranty that is qualified as Loans to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the Funding Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such earlier date and no Default or Unmatured Default has occurred and is continuing or would result from the Advance of the Term Loans made on the Funding DateDate pursuant to the requirements of Section 2.03;
(ii) a duly executed Borrowing/Election Notice signed by an Authorized Officer solvency certificate from the chief financial officer, chief accounting officer or other financial officer of the Borrower.Borrower confirming that the Borrower on a consolidated basis will, pro forma, for the Specified Transactions, be solvent, substantially in the form of Exhibit C;
(iii) satisfactory confirmation of repayment of (A) that certain Revolving Credit and Security Agreement, dated as of November April 18, 2014 (as amended, amended and restated, supplemented or modified from time to time) by and between certain Subsidiaries of Meter Readings, the written opinion of the Loan Parties’ counsellenders party thereto, addressed to the Administrative AgentPNC Bank, each Issuing Bank National Association, as administrative agent, and the Lendersother parties party thereto and (B) that certain First Lien Term Loan Agreement, dated as of August 29, 2016, (as amended, amended and restated, supplemented or modified from time to time) by and between certain Subsidiaries of Meter Readings, the lenders party thereto, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., as administrative agent, and the other parties party thereto, in each case, together with any releases of guarantees and liens associated therewith (or a customary payoff letter authorizing the release thereof substantially a form and containing assumptions and qualifications concurrently with the Funding Date (or such later date as shall be acceptable to the Administrative Agent and its counsel;Arrangers)); and
(iv) a certificateopinions, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying (A) that the Borrower is in pro forma compliance with the financial covenants set forth in Section 7.04 on the Funding Date, including computations demonstrating compliance in reasonable detail thereof; (B) as to the receipt by the Borrower of the proceeds of the Senior Notes in an amount that, together with the Term Loans made on the Funding Date, is not greater than $1,000,000,000; and (C) as to occurrence of the Spin Transaction;
(v) the (A) Historical Information and (B) the financial projections of the Borrower and its Subsidiaries on a consolidated basis, covering fiscal years 2015 through 2018 (inclusive), in each case on a consolidated basis;
(vi) a completed Perfection Certificate, dated the Funding Date and signed by an Authorized Officer of the Borrower;
(vii) evidence that appropriate Uniform Commercial Code financing statements have been (or, on the Funding Date, will be) duly filed in such office or offices as may be necessary or, in the opinion of Administrative Agent, desirable to perfect the Administrative Agent’s Liens in and to the Collateral;
(viii) copies of the Certificate of Incorporation of each Loan Party, together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of incorporation;
(ix) copies, certified by the Secretary or Assistant Secretary of each of the Loan Parties, of its By-Laws and of its Board of Directors’ (or similar body) resolutions authorizing the execution of the Loan Documents entered into by it;
(x) an incumbency certificate, executed by the Secretary or Assistant Secretary of each of the Loan Parties, which shall identify by name and title and bear the original or facsimile signature of the officers of the Loan Parties authorized to sign the Loan Documents and the officers of the Borrower authorized to make borrowings hereunder, upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(xi) a certificate in form and substance reasonably satisfactory to the Administrative Agent, signed by an Authorized Officer of the Borrower, attesting that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Spin Transaction, are Solvent;
(xii) receipt by the Administrative Agent of updated Schedules 6.07, 6.08, 6.18, 7.03(a), 7.03(b), 7.03(d) and 7.03(i) to replace the corresponding Schedules and Annex attached hereto as of the Escrow Date in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, provided that the Lenders agree that such updated schedules shall be deemed to be satisfactory if such updated Schedules (i) do not differ from the corresponding Schedules attached hereto as of the Escrow Date in a manner that is material and adverse addressed to the Lenders or (ii) are otherwise satisfactory to the Required Lenders (and any references to any such Schedules in this Credit Agreement shall thereafter refer to such Schedules dated as the same may have been updated pursuant to this Section 5.01(b)(xii).
(c) (i) The Collateral and Guarantee Requirement shall have been satisfied (provided that, solely with respect to the matters expressly identified in Section 7.02(q), the satisfaction of the conditions set forth in this clause (c) shall not be required on the Funding Date, and shall not be a condition from Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, special New York counsel to the obligations of the Lenders to make Loans hereunder on the Funding DateBorrower, but shall be required to be accomplished in accordance with Section 7.02(q)) and (ii) the Administrative Agent shall have received satisfactory evidence that all steps have been taken to perfect security interests in the Collateral (including delivery of any certificated Equity Interests and other physical▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, pledged collateral).
(d) The Administrative Agent shall have received evidence that the insurance required by Section 7.02(e) is in effect, together with endorsements naming the Administrative Agent, for the benefit of the Lenders, Issuing Banks and Swing Line Lender, as additional insured and loss payee thereunder Connecticut counsel to the extent required under Section 7.02(e).
(e) Since September 30, 2014, no fact, event or circumstance has occurred that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(f) The Administrative Agent shall have received the results of a recent Lien and judgment search in each relevant jurisdiction with respect to the Loan Parties, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted under Section 7.03(b).Borrower;
(g) The Administrative Agent shall have received all documentation and other information reasonably requested by each Lender that is required for compliance with the Patriot Act or other “know your customer” and anti-money laundering rules and regulations (which requested information shall have been received at least five (5) Business Days prior to the Funding Date to the extent requested by the Lenders at least ten (10) Business Days prior to the Funding Date).
(h) The Administrative Agent (for the benefit of itself and the other parties entitled thereto) and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Funding Date (including fees for the account of the Lenders and costs, fees, disbursements and charges of counsel to the Administrative Agent and the Arrangers), including to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket fees and expenses (including, without limitation, legal fees and expenses for which invoices have been presented at least three (3) business days prior to the Funding Date), payable to the Arrangers, the Administrative Agent and the Lenders, in each case required to be reimbursed or paid by the Borrower hereunder. The Administrative Agent Commitment Letter or any Fee Letter (as defined in the Commitment Letter), shall notify have been paid on the Borrower Funding Date;
(h) the Specified Representations shall be true and correct in all material respects (or in all respects in the Lenders case of any representation or warranty qualified by “materiality” or “Material Adverse Effect” or similar terms), in each case at the time of, and after giving effect to, the making of the Loans on the Funding Date and (except to the extent any such notice representation or warranty expressly relates to an earlier date, in which case such representation or warranty shall be conclusive true and binding correct in all material respects (or in all respects, as applicable) as of such earlier date); and, in
(i) the event such conditions are not so satisfied or waived, Specified Acquisition Agreement Representations shall be true and correct to the Commitments shall terminate at such time)extent required by the definition thereof.
Appears in 1 contract
Sources: Term Loan Agreement (Hubbell Inc)
Funding Date. The Each Lender’s obligations of the Lenders to make their respective Term Loans any Loan hereunder and the availability of the Revolving Facility shall become effective on upon the first date on which each satisfaction or waiver (in accordance with Section 8.02) of the following conditions is satisfied on or after the Effective Date:
(or waived a) The Effective Date shall have occurred;
(b) The Acquisition shall have been (or, substantially contemporaneously with the borrowing of the Loans, shall be) consummated in each case in all material respects in accordance with Section 9.03the terms set forth in the Acquisition Agreement after giving effect to any modifications, amendments, supplements, consents, waivers or requests, other than those modifications, amendments, supplements, consents, waivers or requests (including the effects of any such requests) which date shall occur prior by the Borrower that are materially adverse to July 10, 2015 the interests of the Lenders (it being understood and agreed that (i) any modification, amendment, supplement, consent, waiver or request by the Borrower to the extent definition of Material Adverse Effect (as defined in the Funding Date does not occur on Acquisition Agreement) shall be deemed to be materially adverse to the interests of the Lenders and (ii)(x) any consent or prior request made by the Borrower pursuant to July 10, 2015, this Section 6.15 of the Acquisition Agreement and the Commitments Acquired Company’s compliance therewith and (y) any modification, amendment, supplement, consent, waiver or request with respect to definition of the Lenders “End Date” (and any corresponding changes to any terms or provisions (if any) requiring or addressing the consummation of the Acquisition prior to the “End Date”) thereunder, in each case, shall automatically terminate without any further action not be deemed to be materially adverse to the interests of the Lenders), unless consented to in writing by the BorrowerArranger (such consent not to be unreasonably withheld, the Administrative Agent conditioned or any other person):delayed);
(ac) The Administrative Agent shall have received from each party hereto or thereto either a counterpart of this Agreement and each other Loan Document signed on behalf of such party or written evidence satisfactory to the Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of such party) that such party has signed a counterpart of this Agreement and each other Loan Document to which it is a party, including, without limitation, the Collateral Agreement and such other Loan Documents as the Administrative Agent or its counsel may have reasonably requested.
(b) The Borrower has furnished to the Administrative Agent each of the following, with sufficient copies for the Lenders, all in form and substance satisfactory to the Administrative Agent and the Lenders:
(i) a certificateaudited consolidated balance sheets and related audited statements of operations, in form stockholders’ equity and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying that all of the representations in this Agreement are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the Funding Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such earlier date and no Default or Unmatured Default has occurred and is continuing or would result from the Advance of the Term Loans on the Funding Date;
(ii) a duly executed Borrowing/Election Notice signed by an Authorized Officer of the Borrower.
(iii) the written opinion of the Loan Parties’ counsel, addressed to the Administrative Agent, each Issuing Bank and the Lenders, in substantially a form and containing assumptions and qualifications acceptable to the Administrative Agent and its counsel;
(iv) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying (A) that the Borrower is in pro forma compliance with the financial covenants set forth in Section 7.04 on the Funding Date, including computations demonstrating compliance in reasonable detail thereof; (B) as to the receipt by the Borrower of the proceeds of the Senior Notes in an amount that, together with the Term Loans made on the Funding Date, is not greater than $1,000,000,000; and (C) as to occurrence of the Spin Transaction;
(v) the (A) Historical Information and (B) the financial projections cash flows of the Borrower and its Subsidiaries on a consolidated basis, covering the Acquired Company for each of the three fiscal years 2015 through 2018 (inclusive), in each case on a consolidated basis;
(vi) a completed Perfection Certificate, dated most recently ended at least 90 days prior to the Funding Date and signed by an Authorized Officer (b) unaudited consolidated balance sheets and related unaudited statements of operations, stockholders’ equity and cash flows of the Borrower;
(vii) evidence that appropriate Uniform Commercial Code financing statements have been (or, on Borrower and the Acquired Company for each subsequent fiscal quarter ended at least 45 days prior to the Funding Date, will be) duly filed in such office or offices as may be necessary or, in the opinion of Administrative Agent, desirable to perfect the Administrative Agent’s Liens in and to the Collateral;
(viii) copies of the Certificate of Incorporation of each Loan Party, together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of incorporation;
(ix) copies, certified by the Secretary or Assistant Secretary of each of the Loan Parties, of its By-Laws and of its Board of Directors’ (or similar body) resolutions authorizing the execution of the Loan Documents entered into by it;
(x) an incumbency certificate, executed by the Secretary or Assistant Secretary of each of the Loan Parties, which shall identify by name and title and bear the original or facsimile signature of the officers of the Loan Parties authorized to sign the Loan Documents and the officers of the Borrower authorized to make borrowings hereunder, upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(xi) a certificate in form and substance reasonably satisfactory to the Administrative Agent, signed by an Authorized Officer of the Borrower, attesting that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Spin Transaction, are Solvent;
(xii) receipt by the Administrative Agent of updated Schedules 6.07, 6.08, 6.18, 7.03(a), 7.03(b), 7.03(d) and 7.03(i) to replace the corresponding Schedules and Annex attached hereto as of the Escrow Date in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, ; provided that the Lenders agree that such updated schedules shall be deemed to be satisfactory if such updated Schedules (i) do not differ from filing of financial statements complying with the corresponding Schedules attached hereto as of the Escrow Date in a manner that is material and adverse to the Lenders foregoing requirements on Form 10-K or (ii) are otherwise satisfactory to the Required Lenders (and any references to any such Schedules in this Credit Agreement shall thereafter refer to such Schedules Form 10-Q, as the same case may have been updated pursuant to this Section 5.01(b)(xii).
(c) (i) The Collateral and Guarantee Requirement shall have been satisfied (provided thatbe, solely with respect to by the matters expressly identified in Section 7.02(q), Borrower or the satisfaction of Acquired Company will satisfy the applicable conditions set forth in this clause (c) shall not be required on the Funding Date, and shall not be a condition to the obligations of the Lenders to make Loans hereunder on the Funding Date, but shall be required to be accomplished in accordance with Section 7.02(q)) and (ii) the Administrative Agent shall have received satisfactory evidence that all steps have been taken to perfect security interests in the Collateral (including delivery of any certificated Equity Interests and other physical, pledged collateral)4.
(d) The Administrative Agent shall have received evidence that the insurance required by Section 7.02(e) is in effect, together with endorsements naming the Administrative Agent, for the benefit of the Lenders, Issuing Banks and Swing Line Lender, as additional insured and loss payee thereunder to the extent required under Section 7.02(e).
(e) Since September 30, 2014, no fact, event or circumstance has occurred that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(f) The Administrative Agent shall have received the results of a recent Lien and judgment search in each relevant jurisdiction with respect to the Loan Parties, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted under Section 7.03(b).
(g) The Administrative Agent shall have received all documentation and other information reasonably requested by each Lender that is required for compliance with the Patriot Act or other “know your customer” and anti-money laundering rules and regulations (which requested information shall have been received at least five (5) Business Days prior to the Funding Date to the extent requested by the Lenders at least ten (10) Business Days prior to the Funding Date).
(h) The Administrative Agent (for the benefit of itself and the other parties entitled thereto) and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Funding Date (including fees for the account of the Lenders and fees, disbursements and charges of counsel to the Administrative Agent and the Arrangers), including to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date and such notice shall be conclusive and binding (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 1 contract
Sources: Term Loan Credit Agreement (Walgreens Boots Alliance, Inc.)
Funding Date. The Each Lender’s obligations of the Lenders to make their respective Term Loans any Loan hereunder and is subject to the availability of the Revolving Facility shall become effective on the first date on which each satisfaction (or waiver in accordance with Section 8.01) of the following conditions is satisfied (or waived in accordance with Section 9.03) which date shall occur prior to July 10, 2015 (it being understood and agreed that to the extent the Funding Date does not occur on or prior to July 10, 2015, this Agreement and after the Commitments of the Lenders shall automatically terminate without any further action by the Borrower, the Administrative Agent or any other person):Effective Date:
(a) The Administrative Agent Share Acquisition shall have received from been (or, substantially contemporaneously with the borrowing of the Loans, shall be) consummated pursuant to the Transaction Agreement without giving effect to any consents, amendments or waivers by the Borrower thereto that in each party hereto case are materially adverse to the Lenders or the Joint Lead Arrangers (each, a “Materially Adverse Modification”), unless each of the Joint Lead Arrangers shall have provided consent thereto either (such consent not to be unreasonably withheld, conditioned or delayed) (it being understood that (A) any reallocation of the acquisition consideration pursuant to the terms of the Transaction Agreement as in effect on the Effective Date shall not be a counterpart consent, amendment or waiver requiring the consent of this Agreement the Joint Lead Arrangers and each (B) neither of (i) any increase in the Cash Consideration or the Base Verizon Share Amount composed of, or financed with the proceeds of the issuance of, equity of the Borrower or (ii) any decrease of less than 15% of the sum of the Cash Consideration plus the Base Verizon Share Amount plus the Omnitel Consideration Amount or the aggregate principal amount of the Omnitel Note, as applicable, plus the aggregate principal amount of the Verizon Notes as contemplated on the Effective Date shall be materially adverse to the Lenders or the Joint Lead Arrangers); provided that, in the case of a Vodafone Scheme (as defined in the Transaction Agreement), if the conditions precedent to the Share Acquisition specified in Article 7 of the Transaction Agreement, other Loan Document signed on behalf of such party than the Post-Sanction Conditions (as defined in the Transaction Agreement), have been satisfied or written evidence satisfactory waived (without any Materially Adverse Modification) and the Borrower delivers a notice in writing to the Administrative Agent confirming satisfaction or waiver (which may include facsimile or electronic transmission of a signed signature page without any Materially Adverse Modification) of such partyconditions, then the condition precedent in this clause (a) that shall be deemed to have been satisfied subject to the satisfaction of the Post- Sanction Conditions (without any Materially Adverse Modification) within two Business Days following delivery of such party has signed a counterpart of this Agreement and each other Loan Document to which it is a party, including, without limitation, the Collateral Agreement and such other Loan Documents as the Administrative Agent or its counsel may have reasonably requestednotice.
(b) The Borrower has furnished shall have paid all fees and reasonable out-of-pocket expenses of the Administrative Agent, the Joint Lead Arrangers and the Lenders that are due and payable on the Funding Date (including the invoiced fees and expenses of counsel to the Administrative Agent each of the following, with sufficient copies Agent) for the Lenders, all in form and substance satisfactory which invoices have been presented to the Borrower at least three Business Days prior to the Funding Date.
(c) The Administrative Agent and (or its counsel) shall have received each Note requested by any Lender pursuant to Section 2.14, which request was made in writing at least five Business Days prior to the Lenders:Funding Date.
(d) (i) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying that all of the representations in this Agreement are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” Transaction Representations shall be true and correct in all respects) on and as of (x) if the Funding Date, except Transactions are to be consummated pursuant to the extent that such representations Vodafone Scheme (as defined in the Transaction Agreement), on the Sanction Date (as defined in the Transaction Agreement) and warranties specifically refer to an earlier date(y) otherwise, in which case they on the date of the borrowing of the Loans, and (ii) the Specified Representations shall be true and correct in all material respects (except that and, in the case of any representation and warranty that is Specified Representation qualified as to “materiality” or by “Material Adverse Effect” shall be true and correct or similar standard, in all respects) as of such earlier date and no Default or Unmatured Default has occurred and is continuing or would result from at the Advance time of the Term Loans on the Funding Date;
(ii) a duly executed Borrowing/Election Notice signed by an Authorized Officer borrowing of the BorrowerLoans.
(iiie) The absence of, at the written opinion time of borrowing of the Loan Parties’ counselLoans, addressed to the Administrative Agent, each Issuing Bank and the Lenders, any Event of Default described in substantially a form and containing assumptions and qualifications acceptable to the Administrative Agent and its counsel;
(iv) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying (A) that the Borrower is in pro forma compliance with the financial covenants set forth in Section 7.04 on the Funding Date, including computations demonstrating compliance in reasonable detail thereof; (B) as to the receipt by the Borrower of the proceeds of the Senior Notes in an amount that, together with the Term Loans made on the Funding Date, is not greater than $1,000,000,000; and (C) as to occurrence of the Spin Transaction;
(v) the (A) Historical Information and (B) the financial projections of the Borrower and its Subsidiaries on a consolidated basis, covering fiscal years 2015 through 2018 (inclusiveSections 6.01(a), in each case on 6.01(c)(i) (solely with respect to a consolidated basis;
(vibreach of Section 5.02(a) a completed Perfection Certificate, dated the Funding Date and signed by an Authorized Officer of the Borrower;
(vii) evidence that appropriate Uniform Commercial Code financing statements have been (or, on the Funding Date, will be) duly filed in such office or offices as may be necessary or, in the opinion of Administrative Agent, desirable to perfect the Administrative Agent’s Liens in and to the Collateral;
(viii) copies of the Certificate of Incorporation of each Loan Party, together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of incorporation;
(ix) copies, certified by the Secretary or Assistant Secretary of each of the Loan Parties, of its By-Laws and of its Board of Directors’ (or similar body) resolutions authorizing the execution of the Loan Documents entered into by it;
(x) an incumbency certificate, executed by the Secretary or Assistant Secretary of each of the Loan Parties, which shall identify by name and title and bear the original or facsimile signature of the officers of the Loan Parties authorized to sign the Loan Documents and the officers of the Borrower authorized to make borrowings hereunder, upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(xi) a certificate in form and substance reasonably satisfactory to the Administrative Agent, signed by an Authorized Officer of the Borrower, attesting that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Spin Transaction, are Solvent;
(xii) receipt by the Administrative Agent of updated Schedules 6.07, 6.08, 6.18, 7.03(a5.02(b)), 7.03(b), 7.03(d) and 7.03(i) to replace the corresponding Schedules and Annex attached hereto as of the Escrow Date in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, provided that the Lenders agree that such updated schedules shall be deemed to be satisfactory if such updated Schedules (i) do not differ from the corresponding Schedules attached hereto as of the Escrow Date in a manner that is material and adverse to the Lenders or (ii) are otherwise satisfactory to the Required Lenders (and any references to any such Schedules in this Credit Agreement shall thereafter refer to such Schedules as the same may have been updated pursuant to this Section 5.01(b)(xii).
(c6.01(d) (i) The Collateral and Guarantee Requirement shall have been satisfied (provided that, solely with respect to the matters expressly identified in Section 7.02(q), the satisfaction acceleration of indebtedness for borrowed money of the conditions set forth in this clause (cBorrower aggregating to at least the Requisite Amount) shall not be required on the Funding Date, and shall not be a condition to the obligations of the Lenders to make Loans hereunder on the Funding Date, but shall be required to be accomplished in accordance with Section 7.02(qor 6.01(e)) and (ii) the Administrative Agent shall have received satisfactory evidence that all steps have been taken to perfect security interests in the Collateral (including delivery of any certificated Equity Interests and other physical, pledged collateral).
(d) The Administrative Agent shall have received evidence that the insurance required by Section 7.02(e) is in effect, together with endorsements naming the Administrative Agent, for the benefit of the Lenders, Issuing Banks and Swing Line Lender, as additional insured and loss payee thereunder to the extent required under Section 7.02(e).
(e) Since September 30, 2014, no fact, event or circumstance has occurred that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(f) The Administrative Agent shall have received (i) a certificate in form attached as Exhibit F hereto, dated as of the results Funding Date, from an Authorized Officer or the Secretary or Assistant Secretary of a recent Lien and judgment search the Borrower that each of the conditions set forth in each relevant jurisdiction Sections 3.02(a), (d) (with respect to clause (i), to the Loan Partiesknowledge of such Authorized Officer, and such search shall reveal no Liens Secretary or Assistant Secretary based solely on any his or her review of the assets certificate delivered by Vodafone under Section 7.3(c) of the Loan Parties except for Liens permitted under Section 7.03(b).
Transaction Agreement) and (ge) The Administrative Agent shall have received all documentation and other information reasonably requested by each Lender that is required for compliance with the Patriot Act or other “know your customer” and anti-money laundering rules and regulations (which requested information shall have been received at least five satisfied and (5ii) Business Days prior to the Funding Date to the extent requested by the Lenders at least ten (10) Business Days prior to the Funding Date)a Notice of Borrowing in accordance with Section 2.02.
(h) The Administrative Agent (for the benefit of itself and the other parties entitled thereto) and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Funding Date (including fees for the account of the Lenders and fees, disbursements and charges of counsel to the Administrative Agent and the Arrangers), including to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date and such notice shall be conclusive and binding (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 1 contract
Sources: Bridge Credit Agreement
Funding Date. The obligations of the Lenders to make their respective Term Loans hereunder and the availability of the Revolving Facility Issuing Banks to issue Letters of Credit hereunder shall not become effective on until the first date on which each of the following conditions is satisfied (or waived in accordance with Section 9.03) which date shall occur prior to July 10, 2015 (it being understood and agreed that to the extent the Funding Date does not occur on or prior to July 10, 2015, this Agreement and the Commitments of the Lenders shall automatically terminate without any further action by the Borrower, the Administrative Agent or any other person9.02):
(a) The Effective Date shall have occurred.
(b) Since November 15, 2021, there shall not have occurred a Company Material Adverse Effect (as defined in either Funding Date Acquisition Agreement) that is continuing.
(c) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent:
(i) the Collateral Documents and the Guarantee Agreement, duly executed by each party thereto, together with:
(A) the certificates representing the shares of capital stock or other Equity Interests (in each case, to the extent certificated) required to be pledged by any Loan Party (including the Parent Guarantor and the Borrower) pursuant to the Collateral Agreements, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof,
(B) each promissory note (if any) required to be pledged by any Loan Party (including the Parent Guarantor the Borrower) pursuant to the Collateral Agreements, endorsed in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof,
(C) one or more intellectual property security agreements, duly executed and delivered by each Loan Party required to be party thereto pursuant to the Collateral Agreements,
(D) UCC-1 financing statements with respect to each Loan Party, in proper form for filing with the applicable Governmental Authority, and
(ii) except to the extent previously delivered pursuant to Section 4.01(b) (although in respect of Parent Guarantor, a certificate complying with the requirements of this Section 4.02(c)(ii) shall be delivered to reflect the appointment of the Replacement General Partner as general partner of Parent Guarantor in the period between the Effective Date and the Funding Date), a certificate of each Loan Party party to any Loan Document as of the Funding Date, dated as of the Funding Date and executed by a secretary, assistant secretary or other Responsible Officer thereof, which shall:
(A) certify that:
(1) attached thereto is a true and complete copy of the certificate or articles of incorporation, formation or organization (including all amendments thereto) of such Loan Party (and in relation to any Loan Party incorporated in Jersey, a copy of all consents to issue shares issued to it under the Control of Borrower (Jersey) Order 1958 and all other Jersey regulatory approvals, authorizations, consents, licenses, permits or registrations issued to it (if any)) certified as of a recent date by the relevant authority of its jurisdiction of incorporation, association, organization, formation or registration,
(2) such certificate or articles of incorporation, formation or organization of such Loan Party attached thereto have not been amended (except as attached thereto) since the date reflected thereon and are in full force and effect,
(3) attached thereto is a true and correct copy of the by-laws or operating, management, partnership or similar agreement of such Loan Party, together with all amendments thereto as of the Effective Date and such by-laws or operating, management, partnership or similar agreements are or is in full force and effect and
(4) attached thereto is a true and complete copy of the resolutions or written consent, as applicable, of its board of directors, board of managers, sole member, general partner, shareholders or other applicable governing body authorizing the execution, delivery and performance of the Loan Documents, which resolutions or consent have not been modified, rescinded or amended (other than as attached thereto) and are in full force and effect, and
(B) identify by name and title and bear the signatures of the officers, managers, directors or authorized signatories of such Loan Party authorized to sign the Loan Documents to which such Loan Party is a party on the Effective Date and (ii) a good standing (or equivalent) certificate as of a recent date for such Loan Party from the relevant authority of its jurisdiction of incorporation, association, organization, formation or registration (to the extent applicable) and a bring down report from the corporate service provider from which such certificates were obtained verifying that such Loan Party is in good standing on the Funding Date (or, if not reasonably practicable to receive such bring down report on the Funding Date, on the day that is one (1) Business Day prior to the Funding Date).
(d) The Administrative Agent shall have received from each party hereto or thereto either a counterpart of this Agreement and each other Loan Document signed on behalf of such party or written evidence satisfactory opinion (addressed to the Administrative Agent and the Lenders and dated the Funding Date) of (which may include facsimile or electronic transmission of a signed signature page of such partyi) that such party has signed a counterpart of this Agreement and each other Loan Document to which it is a partySkadden, includingArps, without limitationSlate, the Collateral Agreement and such other Loan Documents as the Administrative Agent or its ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, United States counsel may have reasonably requested.
(b) The Borrower has furnished to the Administrative Agent each of Loan Parties, (ii) Walkers (Cayman) LLP, Cayman Islands counsel to the followingLenders and (iii) Walkers (Jersey) LLP, with sufficient copies for the Lenders, all in form and substance satisfactory Jersey counsel to the Administrative Agent and the Lenders:
(i) a certificate, each in form and substance reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(e) The Administrative Agent shall have received a Solvency Certificate, dated the Funding Date and signed by an Authorized a Financial Officer of the Parent Guarantor.
(f) The Administrative Agent shall have received a certificate, dated the Funding Date and signed by a Responsible Officer of each of the Parent Guarantor and the Borrower, certifying that all of there have been no material changes to the representations documents delivered pursuant to Section 4.01(b) with respect to the Parent Guarantor or the Borrower, in this Agreement are each case, since the Effective Date.
(g) The Administrative Agent shall have received a Borrowing Request as required by Section 2.03.
(i) The Specified Representations shall be true and correct in all material respects (except provided that, any such representations and warranties that any representation and warranty that is are qualified as to “materiality” or “by Material Adverse Effect” Effect or other materiality qualifier shall be true and correct in all respects) on and as of the Funding Date, such date except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be are true and correct in all material respects (except that or, in the case of any representation and warranty that is such representations or warranties qualified as to “materiality” or “by Material Adverse Effect” shall be true and correct Effect or other materiality qualifier, in all respects) as of such earlier date and no Default or Unmatured Default has occurred and is continuing or would result from the Advance of the Term Loans on the Funding Date;
(ii) a duly executed Borrowing/Election Notice signed by the Specified Acquisition Agreement Representations shall be true and correct in all respects as of such date except to the extent that such representations and warranties specifically refer to an Authorized Officer earlier date, in which case they are true and correct in all respects as of the Borrowersuch earlier date.
(iiii) the written opinion of the Loan Parties’ counsel, addressed to the Administrative Agent, each Issuing Bank and the Lenders, in substantially a form and containing assumptions and qualifications acceptable to the The Administrative Agent and its counsel;
(iv) shall have received a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying (A) that the Borrower is in pro forma compliance with the financial covenants set forth in Section 7.04 on the Funding Date, including computations demonstrating compliance in reasonable detail thereof; (B) as to the receipt by the Borrower of the proceeds of the Senior Notes in an amount that, together with the Term Loans made on the Funding Date, is not greater than $1,000,000,000; and (C) as to occurrence of the Spin Transaction;
(v) the (A) Historical Information and (B) the financial projections of the Borrower and its Subsidiaries on a consolidated basis, covering fiscal years 2015 through 2018 (inclusive), in each case on a consolidated basis;
(vi) a completed Perfection Certificate, dated the Funding Date and signed by an Authorized Officer of the Borrower;
(vii) evidence that appropriate Uniform Commercial Code financing statements have been (or, on the Funding Date, will be) duly filed in such office or offices as may be necessary or, in the opinion of Administrative Agent, desirable to perfect the Administrative Agent’s Liens in and to the Collateral;
(viii) copies of the Certificate of Incorporation of each Loan Party, together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of incorporation;
(ix) copies, certified by the Secretary or Assistant Secretary of each of the Loan Parties, of its By-Laws and of its Board of Directors’ (or similar body) resolutions authorizing the execution of the Loan Documents entered into by it;
(x) an incumbency certificate, executed by the Secretary or Assistant Secretary of each of the Loan Parties, which shall identify by name and title and bear the original or facsimile signature of the officers of the Loan Parties authorized to sign the Loan Documents and the officers of the Borrower authorized to make borrowings hereunder, upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(xi) a certificate in form and substance reasonably satisfactory to the Administrative Agent, signed by an Authorized Responsible Officer of the Borrower, attesting that the Borrower and its Subsidiaries, on a consolidated basis after giving effect certifying as to the Spin Transactionconditions set forth in clauses 4.02(b), are Solvent;(h), (k) and (l).
(xiij) receipt by the The Administrative Agent of shall have received schedules to this Agreement, updated Schedules 6.07, 6.08, 6.18, 7.03(a), 7.03(b), 7.03(d) and 7.03(i) to replace the corresponding Schedules and Annex attached hereto as of the Escrow Funding Date and in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, provided that that, (i) the Administrative Agent and the Lenders agree that such updated schedules shall be deemed to be satisfactory if such updated Schedules (i) schedules do not differ from the corresponding Schedules schedules attached hereto as of the Escrow Effective Date in a manner that is material and adverse to the Lenders or (ii) are otherwise satisfactory to the Required Lenders (and any references to any such Schedules in this Credit Agreement shall thereafter refer to such Schedules as the same may have been updated pursuant to this Section 5.01(b)(xii).
(c) (i) The Collateral and Guarantee Requirement shall have been satisfied (provided that, solely with respect to the matters expressly identified in Section 7.02(q), the satisfaction of the conditions set forth in this clause (c) shall not be required on the Funding Date, and shall not be a condition to the obligations of the Lenders to make Loans hereunder on the Funding Date, but shall be required to be accomplished in accordance with Section 7.02(q)) and (ii) the Administrative Agent Lenders shall be deemed to have consented to any such updated schedules unless the Required Lenders shall have received satisfactory evidence that all steps have been taken to perfect security interests objected in the Collateral writing within three (including delivery 3) Business Days after receipt of any certificated Equity Interests and other physical, pledged collateral)such updated schedules.
(dk) The Existing Credit Agreement Refinancing shall have occurred or will occur on the Funding Date.
(l) The Funding Date Acquisitions shall have been, or substantially concurrently with the initial Borrowing under this Agreement shall be, consummated in all material respects in accordance with the Funding Date Acquisition Agreements, without giving effect to any modification, amendments, consents or waivers to, or any actions taken by the Parent Guarantor, the Borrower or any of its Affiliates in respect of, the Funding Date Acquisition Agreements that are material and adverse to the Lenders or the Arrangers without the prior written consent of the Arrangers; provided that, (i) any change to the definition of “Company Material Adverse Effect” (as defined in either Funding Date Acquisition Agreement) without such consent shall be deemed to be materially adverse to the Lenders and the Arrangers, and (ii) any change in the purchase price in connection with either Funding Date Acquisition shall not be deemed to be material and adverse to the interests of the Lenders and the Arrangers; provided that, (A) any resulting reduction in each case shall be allocated to reduce the aggregate principal amount of the Term Loans, and (B) any increase in purchase price (excluding any purchase price adjustments in accordance with the terms of either Funding Date Acquisition Agreement) shall be funded with the proceeds of an equity contribution.
(i) The Administrative Agent shall have received evidence that the insurance required by Section 7.02(ereceived, at least three (3) is in effect, together with endorsements naming the Administrative Agent, for the benefit of the Lenders, Issuing Banks and Swing Line Lender, as additional insured and loss payee thereunder Business Days prior to the extent required under Section 7.02(e).
(e) Since September 30Funding Date, 2014, no fact, event or circumstance has occurred that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(f) The Administrative Agent shall have received the results of a recent Lien and judgment search in each relevant jurisdiction with respect to the Loan Parties, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted under Section 7.03(b).
(g) The Administrative Agent shall have received all documentation and other information reasonably regarding the Guarantors requested by each Lender that is required for compliance in connection with the Patriot Act or other applicable “know your customer” and anti-money laundering rules and regulations (which requested information shall have been received at least five (5) Business Days prior to regulations, including the Funding Date Patriot Act, to the extent requested by the Lenders in writing at least ten (10) Business Days prior to the Funding Date and (ii) to the extent any Guarantor qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least three (3) Business Days prior to the Funding Date, any Lender that has requested, in a written notice to the Borrower at least three (3) Business Days prior to the Effective Date, a Beneficial Ownership Certification in relation to such Guarantor shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (m) shall be deemed to be satisfied).
(hn) The Administrative Agent (for the benefit of itself and the other parties entitled thereto) and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Funding Date (including fees for the account of the Lenders and feesDate, disbursements and charges of counsel to the Administrative Agent and the Arrangers)including, including to the extent invoicedinvoiced at least two (2) Business Days prior to the Funding Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by any Loan Party under any Loan Document.
(o) [Reserved.]
(p) To the extent requested at least three (3) Business Days prior to the Funding Date, a Note executed by the Borrower hereunderin favor of each Lender which has requested a Note pursuant to Section 2.10(e) shall have been received by each such Lender.
(q) The Administrative Agent shall have received:
(i) duly completed grantor consent forms signed by the relevant grantor and any individual named therein as the contact for service for the applicable grantor consenting to the inclusion of their name and contact details in a financing statement on the SIR against the relevant grantor in respect of the security interest to be created pursuant to each Jersey Collateral Agreement,
(ii) a search on the SIR made against each grantor on the Funding Date showing that no financing statement have been registered against it (other than in favor of the Administrative Agent),
(iii) a verification statement issued by the Registrar of the SIR indicating that a financing statement has been successfully registered in respect of each grantor under each Jersey Collateral Agreement,
(iv) a copy of each duly executed notice and acknowledgement required to be given in connection with each Jersey Collateral Agreement, and
(v) in relation to the Borrower and Obagi Holdco 2 Limited, a copy of a special resolution amending its articles of association to permit the taking and enforcement of security without, inter alia, a right for directors to refuse, in their discretion, to register a transfer of shares and an extract of its register of members including an annotation identifying the shares over which security has been granted, duly authorized by an authorized signatory of that company as at the date of the relevant Jersey Collateral Agreement. provided that, notwithstanding the foregoing, to the extent that any security interest in any Collateral is not, or cannot be, provided and/or perfected on the Funding Date (other than the pledge and perfection of the security interests (1) in the certificated equity securities of the Borrower and any Domestic Subsidiary and (2) in other assets with respect to which a lien may be perfected by the filing of a UCC financing statement) after the Loan Parties’ use of commercially reasonable efforts to do so or without undue burden or expense, then the provision and/or perfection of a security interest in such Collateral shall not constitute a condition precedent under this Section 4.02 but instead shall be required to be delivered after the Funding Date pursuant to arrangements to be mutually agreed by the Borrower and the Administrative Agent not later than ninety (90) days after the Funding Date or such longer period as may be agreed by the Administrative Agent in its reasonable discretion. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date Date, and such notice shall be conclusive and binding binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with the Section 9.02) on or prior to 5:00 p.m., New York City time on August 15, 2022 (and, in the event such conditions are not so satisfied or waived, this Agreement and the Commitments shall terminate at such time).
Appears in 1 contract
Funding Date. The obligations of the Lenders to make their respective Term Loans hereunder and the availability of the Revolving Facility Issuing Banks to issue Letters of Credit hereunder shall not become effective on until the first date on which each of the following conditions is satisfied (or waived in accordance with Section 9.03) which date shall occur prior to July 10, 2015 (it being understood and agreed that to the extent the Funding Date does not occur on or prior to July 10, 2015, this Agreement and the Commitments of the Lenders shall automatically terminate without any further action by the Borrower, the Administrative Agent or any other person9.02):
(a) The Administrative Agent Signing Date shall have received from each party hereto or thereto either a counterpart of this Agreement and each other Loan Document signed on behalf of such party or written evidence satisfactory to the Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of such party) that such party has signed a counterpart of this Agreement and each other Loan Document to which it is a party, including, without limitation, the Collateral Agreement and such other Loan Documents as the Administrative Agent or its counsel may have reasonably requestedoccurred.
(b) The Borrower has furnished shall have delivered a Borrowing Request in accordance with the requirements of Section 2.03.
(c) The Lenders shall have received true and complete copies of the Spin-Off Agreements and, to the Administrative Agent each extent requested by any Arranger at least three (3) Business Days prior to the Funding Date, all other material agreements entered into in connection with the Spin-Off. The terms of all such agreements shall be consistent in all material respects with the information set forth in, and the forms of such agreements filed with, the Form 10 or otherwise reasonably satisfactory to the Arrangers (it being agreed that the terms set forth in, and the forms of such agreements filed with, the Form 10 are reasonably satisfactory to the Arrangers), and no term or condition of such agreements shall have been waived, amended or otherwise modified in a manner material and adverse to the rights or interests of the followingLenders without the prior approval of the Arrangers, with sufficient copies for it being agreed that the Arrangers will act reasonably in making any such determination (and if the Borrower notifies the Arrangers of any such waiver, amendment or modification, the Arrangers shall, upon request of the Borrower in writing, confirm to the Borrower whether any such prior approval is required).
(d) The Form 10 shall have been declared effective by the SEC and all conditions to the Spin-Off set forth in the Form 10 shall have been satisfied (or shall be satisfied on the Funding Date immediately following the occurrence of the Spin-Off) or waived (in the case of any waiver material and adverse to the rights or interests of the Lenders, subject to the receipt of the approval of the Arrangers), and the Cabinets Business Transfers, the Spin-Off and the FBHS Cash Payment shall have been consummated or shall be consummated on the Funding Date following the making of the Loans, on terms consistent with applicable law and, in all material respects, with the information set forth in, and the forms of agreements filed with, the Form 10 and the pro forma financial information heretofore delivered to the Arrangers. There shall be no material payments by the Borrower to FBHS in connection with the Spin-Off other than the payment of the FBHS Cash Payment, repayment of existing intercompany debt and other payments described in the Form 10, and the assets, liabilities and capitalization of the Borrower after giving effect to the FBHS Cash Payment and all related transactions shall be consistent in all material respects with the pro forma financial statements heretofore delivered to the Lenders (it being agreed that the FBHS Cash Payment may be in an aggregate amount up to $940,000,000).
(e) The Lenders shall have received (a) a favorable solvency certificate from the chief financial officer of the Borrower dated as of the Funding Date (and after giving effect to the Transactions) and in customary form and substance satisfactory affirming that a favorable solvency opinion (as to solvency of the Borrower and its Subsidiaries) was delivered by a nationally recognized advisory firm to the Board of Directors of FBHS, and (b) copies of the private letter ruling from the Internal Revenue Service, if obtained, and the legal opinions by FBHS (or customary short form opinions of legal counsel relating thereto) as to the tax free nature of the Spin-Off (in each case, on a non-reliance basis).
(f) The Lenders shall have received (i) audited consolidated financial statements of the Borrower for the two most recent fiscal years ended prior to the Funding Date as to which such financial statements are available, (ii) unaudited interim consolidated financial statements of the Borrower for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) of this paragraph (f) as to which such financial statements are available (and in any event, for each such quarterly period ending more than forty-five (45) days prior to the Funding Date) (in each case of the preceding clauses (i) and (ii), giving effect to the transfer of the Cabinets Business to the Borrower) and (iii) the Borrower’s most recent projected income statement, balance sheet and cash flows through 2027, in each case giving effect to the Spin-Off and the transactions related thereto, together with such information as the Administrative Agent and the Lenders:
Lenders shall reasonably request (i) including, without limitation, a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer detailed description of the Borrower, certifying that all of the representations assumptions used in this Agreement are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the Funding Date, except to the extent that preparing such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such earlier date and no Default or Unmatured Default has occurred and is continuing or would result from the Advance of the Term Loans on the Funding Date;
(ii) a duly executed Borrowing/Election Notice signed by an Authorized Officer of the Borrowerprojections).
(iiig) There shall be no litigation or administrative proceeding that would reasonably be expected to have a material adverse effect on the written opinion of the Loan Parties’ counsel, addressed to the Administrative Agent, each Issuing Bank and the Lenders, in substantially a form and containing assumptions and qualifications acceptable to the Administrative Agent and its counsel;Spin-Off.
(ivh) a certificate, in form All governmental and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying (A) that the Borrower is in pro forma compliance with the financial covenants set forth in Section 7.04 on the Funding Date, including computations demonstrating compliance in reasonable detail thereof; (B) as to the receipt by the Borrower of the proceeds of the Senior Notes in an amount that, together with the Term Loans made on the Funding Date, is not greater than $1,000,000,000; and (C) as to occurrence of the Spin Transaction;
(v) the (A) Historical Information and (B) the financial projections of the Borrower and its Subsidiaries on a consolidated basis, covering fiscal years 2015 through 2018 (inclusive), in each case on a consolidated basis;
(vi) a completed Perfection Certificate, dated the Funding Date and signed by an Authorized Officer of the Borrower;
(vii) evidence that appropriate Uniform Commercial Code financing statements have been (or, on the Funding Date, will be) duly filed in such office or offices as may be third party approvals necessary or, in the opinion discretion of Administrative Agent, desirable to perfect the Administrative Agent’s Liens in and to the Collateral;
(viii) copies of the Certificate of Incorporation of each Loan Party, together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of incorporation;
(ix) copies, certified by the Secretary or Assistant Secretary of each of the Loan Parties, of its By-Laws and of its Board of Directors’ (or similar body) resolutions authorizing the execution of the Loan Documents entered into by it;
(x) an incumbency certificate, executed by the Secretary or Assistant Secretary of each of the Loan Parties, which shall identify by name and title and bear the original or facsimile signature of the officers of the Loan Parties authorized to sign the Loan Documents and the officers of the Borrower authorized to make borrowings hereunder, upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(xi) a certificate in form and substance reasonably satisfactory to the Administrative Agent, signed by an Authorized Officer of advisable in connection with the Borrower, attesting that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Spin Transaction, are Solvent;
(xii) receipt by the Administrative Agent of updated Schedules 6.07, 6.08, 6.18, 7.03(a), 7.03(b), 7.03(d) and 7.03(i) to replace the corresponding Schedules and Annex attached hereto as of the Escrow Date in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, provided that the Lenders agree that such updated schedules Transactions shall be deemed to be satisfactory if such updated Schedules (i) do not differ from the corresponding Schedules attached hereto as of the Escrow Date in a manner that is material and adverse to the Lenders or (ii) are otherwise satisfactory to the Required Lenders (and any references to any such Schedules in this Credit Agreement shall thereafter refer to such Schedules as the same may have been updated pursuant to this Section 5.01(b)(xii)obtained and be in full force and effect.
(c) (i) The Collateral and Guarantee Requirement shall have been satisfied (provided that, solely with respect to the matters expressly identified in Section 7.02(q), the satisfaction of the conditions set forth in this clause (c) shall not be required on the Funding Date, and shall not be a condition to the obligations of the Lenders to make Loans hereunder on the Funding Date, but shall be required to be accomplished in accordance with Section 7.02(q)) and (ii) the Administrative Agent shall have received satisfactory evidence that all steps have been taken to perfect security interests in the Collateral (including delivery of any certificated Equity Interests and other physical, pledged collateral).
(d) satisfied. The Administrative Agent shall have received evidence that a completed perfection certificate, dated the insurance required Funding Date and signed by Section 7.02(e) is in effectan executive officer or a Financial Officer of the Borrower, together with endorsements naming the Administrative Agentall attachments contemplated thereby, for the benefit of the Lenders, Issuing Banks and Swing Line Lender, as additional insured and loss payee thereunder to the extent required under Section 7.02(e).
(e) Since September 30, 2014, no fact, event or circumstance has occurred that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(f) The Administrative Agent shall have received including the results of a recent Lien and judgment search in each relevant jurisdiction of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties, Parties in the jurisdictions contemplated by the perfection certificate and copies of the financing statements (or similar documents) disclosed by such search shall reveal no and evidence reasonably satisfactory to the Administrative Agent that the Liens on any of the assets of the Loan Parties except for Liens indicated by such financing statements (or similar documents) are permitted under Section 7.03(b)6.02 or have been, or substantially contemporaneously with the initial funding of Loans on the Funding Date will be, released.
(gj) The Administrative Agent shall have received all documentation and other information reasonably requested by Agent, each Lender that is required for compliance with the Patriot Act or other “know your customer” and anti-money laundering rules and regulations (which requested information shall have been received at least five (5) Business Days prior to the Funding Date to the extent requested by the Lenders at least ten (10) Business Days prior to the Funding Date).
(h) The Administrative Agent (for the benefit of itself and the other parties entitled thereto) and the Arrangers each Arranger shall have received all fees and other amounts due and payable on or prior to the Funding Date (including fees for the account of the Lenders and feesDate, disbursements and charges of counsel to the Administrative Agent and the Arrangers)including, including to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(k) There shall not have occurred since December 26, 2021, any event, condition or circumstance that has had or would reasonably be expected to have a material adverse effect on the business, results of operations, properties, assets or financial condition of the Borrower and its subsidiaries, taken as a whole, or on the Cabinets Business.
(l) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Funding Date) of counsel for the Loan Parties (which may include opinions of in house counsel) in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Loan Parties, this Agreement or the Transactions as the Administrative Agent shall reasonably request. The Borrower hereby requests such counsel to deliver such opinion.
(i) Each Lender, as applicable, shall have received from the Borrower any promissory notes requested pursuant to, and in accordance with, Section 2.10(e), and (ii) subject to Section 5.10(e), the Administrative Agent shall have received duly executed copies of the Subsidiary Guaranty, the Security Agreement and the other documents and certificates identified on Exhibit E attached hereto (including, without limitation, documents and certificates which the Administrative Agent may reasonably request relating to the organization, existence and good standing of the Loan Parties, the authorization of the Transactions and any other legal matters relating to the Loan Parties, this Agreement or the Transactions), all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(n) The Administrative Agent shall have received a certificate, dated the Funding Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming (i) that the Funding Date Representations shall be true and correct in all material respects (and in all respects if qualified by Material Adverse Effect or other materiality qualifier) on and as of the Funding Date except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct in all material respects (and in all respects if qualified by Material Adverse Effect or other materiality qualifier) on and as of such earlier date, (ii) that, as of the Funding Date, no Default shall have occurred and be continuing, and (iii) compliance with the conditions set forth in paragraphs (d), (g), (h) and (k) of this Section 4.02.
(o) The Administrative Agent shall have received updated disclosure schedules to the Credit Agreement reflecting updates after giving effect to the Spin-Off and related Transactions, which schedules shall be reasonably acceptable to the Administrative Agent. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date Date, and such notice shall be conclusive and binding binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on March 31, 2023 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 1 contract
Sources: Credit Agreement (MasterBrand, Inc.)
Funding Date. The obligations obligation of the Lenders each Lender to make their respective Term Loans hereunder and the availability of the Revolving Facility shall become effective a Loan on the first date on which each Funding Date in accordance with Section 2.01 is subject to the satisfaction of the following conditions is satisfied (or unless waived in accordance with Section 9.03) which date shall occur prior to July 10, 2015 (it being understood and agreed that to the extent the Funding Date does not occur on or prior to July 10, 2015, this Agreement and the Commitments of the Lenders shall automatically terminate without any further action by the Borrower, the Administrative Agent or any other person10.02):
(a) The Administrative Agent shall have received from each party hereto or thereto either a counterpart representations and warranties of the Obligors set forth in Article III of this Agreement and each or any other Loan Document signed on behalf of such party or written evidence satisfactory to the Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of such party) that such party has signed a counterpart of this Agreement and each other Loan Document to which it is a party, including, without limitation, the Collateral Agreement and such other Loan Documents as the Administrative Agent or its counsel may have reasonably requested.
(b) The Borrower has furnished to the Administrative Agent each of the following, with sufficient copies for the Lenders, all in form and substance satisfactory to the Administrative Agent and the Lenders:
(i) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying that all of the representations in this Agreement are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the Funding Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except that other than any such representation and warranty that is already qualified as to “materiality” or “Material Adverse Effect” by materiality in which case such representation and warranty shall be true and correct) on and as of the Funding Date, before and after giving effect to the Borrowing, or, if any such representation or warranty was made as of an earlier date, such representation and warranty was true and correct in all respects) material respects on and as of such earlier date date.
(b) Prior to and immediately after giving effect to the Borrowing on the Funding Date, no Default or Unmatured Default has occurred and is continuing or would result from the Advance use of the Term Loans on the Funding Date;
(ii) a duly executed Borrowing/Election Notice signed by an Authorized Officer of the Borrower.
(iii) the written opinion of the Loan Parties’ counsel, addressed to the Administrative Agent, each Issuing Bank and the Lenders, in substantially a form and containing assumptions and qualifications acceptable to the Administrative Agent and its counsel;
(iv) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying (A) that the Borrower is in pro forma compliance with the financial covenants set forth in Section 7.04 on the Funding Date, including computations demonstrating compliance in reasonable detail thereof; (B) as to the receipt by the Borrower of the proceeds of the Senior Notes in an amount that, together with the Term Loans made on the Funding Date, is not greater than $1,000,000,000; and (C) as to occurrence of the Spin Transaction;
(v) the (A) Historical Information and (B) the financial projections of the Borrower and its Subsidiaries on a consolidated basis, covering fiscal years 2015 through 2018 (inclusive), in each case on a consolidated basis;
(vi) a completed Perfection Certificate, dated the Funding Date and signed by an Authorized Officer of the Borrower;
(vii) evidence that appropriate Uniform Commercial Code financing statements have been (or, on the Funding Date, will be) duly filed in such office or offices as may be necessary or, in the opinion of Administrative Agent, desirable to perfect the Administrative Agent’s Liens in and to the Collateral;
(viii) copies of the Certificate of Incorporation of each Loan Party, together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of incorporation;
(ix) copies, certified by the Secretary or Assistant Secretary of each of the Loan Parties, of its By-Laws and of its Board of Directors’ (or similar body) resolutions authorizing the execution of the Loan Documents entered into by it;
(x) an incumbency certificate, executed by the Secretary or Assistant Secretary of each of the Loan Parties, which shall identify by name and title and bear the original or facsimile signature of the officers of the Loan Parties authorized to sign the Loan Documents and the officers of the Borrower authorized to make borrowings hereunder, upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(xi) a certificate in form and substance reasonably satisfactory to the Administrative Agent, signed by an Authorized Officer of the Borrower, attesting that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Spin Transaction, are Solvent;
(xii) receipt by the Administrative Agent of updated Schedules 6.07, 6.08, 6.18, 7.03(a), 7.03(b), 7.03(d) and 7.03(i) to replace the corresponding Schedules and Annex attached hereto as of the Escrow Date in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, provided that the Lenders agree that such updated schedules shall be deemed to be satisfactory if such updated Schedules (i) do not differ from the corresponding Schedules attached hereto as of the Escrow Date in a manner that is material and adverse to the Lenders or (ii) are otherwise satisfactory to the Required Lenders (and any references to any such Schedules in this Credit Agreement shall thereafter refer to such Schedules as the same may have been updated pursuant to this Section 5.01(b)(xii)therefrom.
(c) (i) The Collateral and Guarantee Requirement Borrower shall have been satisfied (provided that, solely with respect to the matters expressly identified in Section 7.02(q), the satisfaction of the conditions set forth in this clause (c) shall not be required on the Funding Date, and shall not be delivered a condition to the obligations of the Lenders to make Loans hereunder on the Funding Date, but shall be required to be accomplished Borrowing Request in accordance with Section 7.02(q)) and (ii) the Administrative Agent shall have received satisfactory evidence that all steps have been taken to perfect security interests in the Collateral (including delivery of any certificated Equity Interests and other physical, pledged collateral)2.03.
(d) The Administrative Agent (or its counsel) shall have received evidence a Note executed by the Borrower in favor of each Lender that the insurance required by Section 7.02(e) is in effect, together with endorsements naming the Administrative Agent, for the benefit of the Lenders, Issuing Banks and Swing Line Lender, as additional insured and loss payee thereunder requested a Note prior to the extent required under Funding Date in accordance with Section 7.02(e2.08(e).
(e) Since September 30The Guarantor shall have received the Letter Ruling, 2014, no fact, event or circumstance which has occurred that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effectnot been withdrawn.
(f) The Administrative Agent shall have received the results of Compliance on a recent Lien and judgment search in each relevant jurisdiction with respect pro forma basis, after giving effect to the Loan Parties, and such search shall reveal no Liens on any making of the assets Loans, with the applicable financial covenants set forth in Section 5.09, as of the Loan Parties except last day of the most recently ended fiscal period of the Borrower for Liens permitted under Section 7.03(b)which financial statements are available.
(g) The Administrative Agent Borrower shall have received paid all documentation and other information reasonably requested by each Lender that is fees required for compliance with the Patriot Act or other “know your customer” and anti-money laundering rules and regulations (which requested information shall have been received at least five (5) Business Days prior to be paid on the Funding Date in accordance with the terms of the Fee Letters and, unless waived by the Administrative Agent and the Lead Arrangers, the Borrower shall have paid all legal fees and expenses of the Administrative Agent and the Lead Arrangers required to be paid pursuant to the terms of this Agreement and to the extent requested invoiced and received by the Lenders at least ten (10) Business Days Borrower within a reasonable period prior to the Funding Date).
(h) The Administrative Agent (for Each of the benefit of itself and the other parties entitled thereto) and the Lead Arrangers shall have received be reasonably satisfied that the Borrower (and as applicable, the Guarantor) used all fees and other amounts due and payable commercially reasonable efforts to cause the Senior Notes to be issued or placed on or prior to the Funding Date Date, which efforts will include, without limitation, (i) the preparation of a preliminary prospectus or preliminary offering memorandum or preliminary private placement memorandum suitable for use in a customary “road show” and, which will be in a form that will enable the independent registered public accountants of the Borrower (and as applicable, the Guarantor) to render a customary “comfort letter” (including fees for customary “negative assurances”) (ii) as and if deemed appropriate by the account financial advisor to the Guarantor in connection with the Separation Transaction, the participation of senior management and representatives of the Lenders and fees, disbursements and charges of counsel to Borrower in the Administrative Agent and road show during the Arrangers), including to the extent invoiced, reimbursement or payment of all reasonable and documented out30-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder. The Administrative Agent shall notify the Borrower and the Lenders of day period ending on the Funding Date and such notice (iii) in connection with the foregoing, provide to the Lead Arrangers all financial statements and other information relating to the Borrower that would be required in a registration statement of the Borrower on Form S-1 for an offering registered under the Securities Act relating to senior unsecured notes. Delivery of the Borrowing Request shall be conclusive deemed to constitute a representation and binding warranty by the Obligors on the Funding Date as to the matters specified in clauses (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time)a) and (b) of this Section 4.02.
Appears in 1 contract
Sources: 364 Day Senior Unsecured Bridge Loan Agreement (Tyco International LTD)
Funding Date. The obligations of the Lenders to make their respective Term Loans hereunder and the availability of the Revolving Facility shall not become effective on until the first date on which each of the following conditions is satisfied (or waived in accordance with Section 9.03) which date shall occur prior to July 10, 2015 (it being understood and agreed that to the extent the Funding Date does not occur on or prior to July 10, 2015, this Agreement and the Commitments of the Lenders shall automatically terminate without any further action by the Borrower, the Administrative Agent or any other person9.02):
(a) Each Lender, as applicable, shall have received from the Borrower any promissory notes requested pursuant to, and in accordance with, Section 2.10(e).
(b) The Administrative Agent shall have received from each party hereto or thereto either a counterpart of this Agreement and each other Loan Document signed on behalf of such party or favorable written evidence satisfactory to the Administrative Agent opinion (which may include facsimile or electronic transmission of a signed signature page of such party) that such party has signed a counterpart of this Agreement and each other Loan Document to which it is a party, including, without limitation, the Collateral Agreement and such other Loan Documents as the Administrative Agent or its counsel may have reasonably requested.
(b) The Borrower has furnished to the Administrative Agent each of the following, with sufficient copies for the Lenders, all in form and substance satisfactory addressed to the Administrative Agent and the Lenders:
(i) a certificate, in form Lenders and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying that all of the representations in this Agreement are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of dated the Funding Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such earlier date and no Default or Unmatured Default has occurred and is continuing or would result from the Advance of the Term Loans on the Funding Date;
(ii) a duly executed Borrowing/Election Notice signed by an Authorized Officer of the Borrower.
(iii) the written opinion of the Loan Parties’ counsel, addressed to the Administrative Agent, each Issuing Bank and the Lenders, in substantially a form and containing assumptions and qualifications acceptable to the Administrative Agent and its counsel;
(iv) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying (A) that counsel for the Borrower is in pro forma compliance with the financial covenants set forth in Section 7.04 on the Funding Date, including computations demonstrating compliance in reasonable detail thereof; (B) as to the receipt by the Borrower of the proceeds of the Senior Notes in which opinion may be from an amount that, together with the Term Loans made on the Funding Date, is not greater than $1,000,000,000; and (C) as to occurrence of the Spin Transaction;
(v) the (A) Historical Information and (B) the financial projections of the Borrower and its Subsidiaries on a consolidated basis, covering fiscal years 2015 through 2018 (inclusivein-house counsel), in each case on a consolidated basis;
(vi) a completed Perfection Certificate, dated the Funding Date and signed by an Authorized Officer of the Borrower;
(vii) evidence that appropriate Uniform Commercial Code financing statements have been (or, on the Funding Date, will be) duly filed in such office or offices as may be necessary or, in the opinion of Administrative Agent, desirable to perfect the Administrative Agent’s Liens in and to the Collateral;
(viii) copies of the Certificate of Incorporation of each Loan Party, together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of incorporation;
(ix) copies, certified by the Secretary or Assistant Secretary of each of the Loan Parties, of its By-Laws and of its Board of Directors’ (or similar body) resolutions authorizing the execution of the Loan Documents entered into by it;
(x) an incumbency certificate, executed by the Secretary or Assistant Secretary of each of the Loan Parties, which shall identify by name and title and bear the original or facsimile signature of the officers of the Loan Parties authorized to sign the Loan Documents and the officers of the Borrower authorized to make borrowings hereunder, upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(xi) a certificate in form and substance reasonably satisfactory to the Administrative Agent, signed by an Authorized Officer of the Borrower, attesting that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Spin Transaction, are Solvent;
(xii) receipt by the Administrative Agent of updated Schedules 6.07, 6.08, 6.18, 7.03(a), 7.03(b), 7.03(d) and 7.03(i) to replace the corresponding Schedules and Annex attached hereto as of the Escrow Date in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, provided that the Lenders agree that covering such updated schedules shall be deemed to be satisfactory if such updated Schedules (i) do not differ from the corresponding Schedules attached hereto as of the Escrow Date in a manner that is material and adverse matters relating to the Lenders Borrower, this Agreement or (ii) are otherwise satisfactory to the Required Lenders (and any references to any such Schedules in this Credit Agreement shall thereafter refer to such Schedules Transactions as the same may have been updated pursuant Administrative Agent shall reasonably request. The Borrower hereby requests such counsel to this Section 5.01(b)(xii)deliver such opinion.
(c) (i) The Collateral and Guarantee Requirement shall have been satisfied (provided that, solely with respect to the matters expressly identified in Section 7.02(q), the satisfaction of the conditions set forth in this clause (c) shall not be required on the Funding Date, and shall not be a condition to the obligations of the Lenders to make Loans hereunder on the Funding Date, but shall be required to be accomplished in accordance with Section 7.02(q)) and (ii) the Administrative Agent shall have received such supplemental documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, the authorization of the Transactions and any other legal matters relating to the Borrower, this Agreement or the Transactions, all in form and substance reasonably satisfactory evidence that all steps have been taken to perfect security interests in the Collateral (including delivery of any certificated Equity Interests Administrative Agent and other physical, pledged collateral)its counsel.
(d) The Administrative Agent shall have received evidence that a certificate, dated the insurance required Funding Date and signed by Section 7.02(e) is in effectthe President, together with endorsements naming the Administrative Agent, for the benefit a Vice President or a Financial Officer of the LendersBorrower, Issuing Banks confirming that (i) all representations and Swing Line Lenderwarranties of the Credit Parties set forth in the Credit Documents are true and correct on and as of the Funding Date and (ii) on the Funding Date and immediately after giving effect to any Borrowing on the Funding Date, as additional insured no Default shall have occurred and loss payee thereunder to the extent required under Section 7.02(e)be continuing.
(e) Since September 30, 2014, no fact, event or circumstance has occurred that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(f) The Administrative Agent shall have received the results of a recent Lien and judgment search in each relevant jurisdiction with respect to the Loan PartiesAgent, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted under Section 7.03(b).
(g) The Administrative Agent shall have received all documentation and other information reasonably requested by each Lender that is required for compliance with the Patriot Act or other “know your customer” and anti-money laundering rules and regulations (which requested information shall have been received at least five (5) Business Days prior to the Funding Date to the extent requested by the Lenders at least ten (10) Business Days prior to the Funding Date).
(h) The Administrative Agent (for the benefit of itself and the other parties entitled thereto) and the Arrangers each Arranger shall have received all fees and other amounts due and payable on or prior to the Funding Date (including fees for the account of the Lenders and feesDate, disbursements and charges of counsel to the Administrative Agent and the Arrangers)including, including to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-out of pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(f) The Lenders shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
(g) The Borrower shall provide evidence satisfactory to the Administrative Agent that all governmental and third party approvals necessary or, in the discretion of the Administrative Agent, advisable in connection with the Transactions contemplated hereby shall have been obtained and be in full force and effect.
(h) With respect to the Borrower and its Subsidiaries (including the Target and its Subsidiaries), the Lenders shall have received projections in form and substance satisfactory to the Lenders for the period through the Revolving Maturity Date.
(i) The Lenders shall have received a solvency certificate from the chief financial officer of the Borrower dated as of the Funding Date and substantially in the form annexed as Exhibit F.
(j) The Administrative Agent shall have received a certificate, dated the Funding Date and signed by a Financial Officer of the Borrower, setting forth reasonably detailed computations evidencing compliance with the Leverage Ratio and the Interest Coverage Ratio as of the Funding Date giving pro-forma effect to the consummation of any borrowings made on the Funding Date.
(k) The Borrower shall have consummated (or shall substantially contemporaneously consummate) the Acquisition. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date Date, and such notice shall be conclusive and binding binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on September 30, 2015 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 1 contract
Sources: Credit Agreement (Fortune Brands Home & Security, Inc.)
Funding Date. The obligations obligation of the Lenders each Lender to make their respective Term Loans hereunder and the availability of the Revolving Facility shall become effective a Loan on the first date on which each Funding Date is subject only to the Effective Date and to the satisfaction of the following conditions is satisfied additional conditions:
(or waived a) Substantially concurrently with the making of the Loans, the Specified Acquisition shall have been consummated in all material respects in accordance with Section 9.03the Acquisition Agreement without giving effect to any amendment, modification or waiver or consent by the Borrower thereunder, in each case, that is materially adverse to the Lenders, in their capacities as such, without the prior written consent of the Specified Lead Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) which date shall occur prior to July 10, 2015 (it being understood and agreed that (i) any increase or decrease in the acquisition consideration under the Acquisition Agreement in accordance with the terms of the Acquisition Agreement as in effect on June 10, 2023 and the Purchaser’s (as defined in the Acquisition Agreement) election to exercise its rights under Section 2.6 of the Acquisition Agreement as in effect on June 10, 2023, (ii) any other decrease in the acquisition consideration under the Acquisition Agreement that is accompanied by a dollar-for-dollar reduction in the Commitments and (iii) any other increase in the cash portion of the acquisition consideration since June 10, 2023 which does not exceed 5% of the purchase price, in each case shall be deemed not to be materially adverse to the extent the Funding Date does not occur on or prior to July 10, 2015, this Agreement and the Commitments of the Lenders shall automatically terminate without any further action by the Borrower, the Administrative Agent or any other person):
(a) The Administrative Agent shall have received from each party hereto or thereto either a counterpart of this Agreement and each other Loan Document signed on behalf of such party or written evidence satisfactory to the Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of such party) that such party has signed a counterpart of this Agreement and each other Loan Document to which it is a party, including, without limitation, the Collateral Agreement and such other Loan Documents as the Administrative Agent or its counsel may have reasonably requestedLenders.
(b) The Borrower has furnished to Since the Administrative Agent each date of the followingAcquisition Agreement, with sufficient copies for no Company Material Adverse Effect (as defined in the LendersAcquisition Agreement as in effect on June 10, all in form and substance satisfactory to the Administrative Agent and the Lenders:
(i2023) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying that all of the representations in this Agreement are true and correct in all material respects (except that any representation and warranty shall have occurred that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the Funding Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such earlier date and no Default or Unmatured Default has occurred and is continuing or would result from the Advance of the Term Loans on the Funding Date;
(ii) a duly executed Borrowing/Election Notice signed by an Authorized Officer of the Borrower.
(iii) the written opinion of the Loan Parties’ counsel, addressed to the Administrative Agent, each Issuing Bank and the Lenders, in substantially a form and containing assumptions and qualifications acceptable to the Administrative Agent and its counsel;
(iv) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying (A) that the Borrower is in pro forma compliance with the financial covenants set forth in Section 7.04 on the Funding Date, including computations demonstrating compliance in reasonable detail thereof; (B) as to the receipt by the Borrower of the proceeds of the Senior Notes in an amount that, together with the Term Loans made on the Funding Date, is not greater than $1,000,000,000; and (C) as to occurrence of the Spin Transaction;
(v) the (A) Historical Information and (B) the financial projections of the Borrower and its Subsidiaries on a consolidated basis, covering fiscal years 2015 through 2018 (inclusive), in each case on a consolidated basis;
(vi) a completed Perfection Certificate, dated the Funding Date and signed by an Authorized Officer of the Borrower;
(vii) evidence that appropriate Uniform Commercial Code financing statements have been (or, on the Funding Date, will be) duly filed in such office or offices as may be necessary or, in the opinion of Administrative Agent, desirable to perfect the Administrative Agent’s Liens in and to the Collateral;
(viii) copies of the Certificate of Incorporation of each Loan Party, together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of incorporation;
(ix) copies, certified by the Secretary or Assistant Secretary of each of the Loan Parties, of its By-Laws and of its Board of Directors’ (or similar body) resolutions authorizing the execution of the Loan Documents entered into by it;
(x) an incumbency certificate, executed by the Secretary or Assistant Secretary of each of the Loan Parties, which shall identify by name and title and bear the original or facsimile signature of the officers of the Loan Parties authorized to sign the Loan Documents and the officers of the Borrower authorized to make borrowings hereunder, upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(xi) a certificate in form and substance reasonably satisfactory to the Administrative Agent, signed by an Authorized Officer of the Borrower, attesting that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Spin Transaction, are Solvent;
(xii) receipt by the Administrative Agent of updated Schedules 6.07, 6.08, 6.18, 7.03(a), 7.03(b), 7.03(d) and 7.03(i) to replace the corresponding Schedules and Annex attached hereto as of the Escrow Date in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, provided that the Lenders agree that such updated schedules shall be deemed to be satisfactory if such updated Schedules (i) do not differ from the corresponding Schedules attached hereto as of the Escrow Date in a manner that is material and adverse to the Lenders or (ii) are otherwise satisfactory to the Required Lenders (and any references to any such Schedules in this Credit Agreement shall thereafter refer to such Schedules as the same may have been updated pursuant to this Section 5.01(b)(xii).
(c) (i) The Collateral Specified Representations shall be accurate in all material respects on and Guarantee Requirement as of the Funding Date (except to the extent that any Specified Representations expressly relate to an earlier date, in which case such Specified Representations shall have been satisfied (provided that, solely with respect to the matters expressly identified accurate in Section 7.02(q), the satisfaction all material respects as of the conditions set forth in this clause (c) shall not be required on the Funding Date, and shall not be a condition to the obligations of the Lenders to make Loans hereunder on the Funding Date, but shall be required to be accomplished in accordance with Section 7.02(q)such earlier date) and (ii) the Administrative Agent Acquisition Agreement Representations (to the extent set forth in the definition thereof) shall be accurate in all material respects on and as of the Funding Date.
(d) Prior to, or substantially concurrently with, the making of the Loans on the Funding Date, all principal, interest and fees due under the Argus Credit Agreement shall have received satisfactory evidence that been paid and all steps commitments thereunder shall have been taken to perfect security interests in terminated (the Collateral (including delivery of any certificated Equity Interests and other physical, pledged collateral“Refinancing”).
(de) The Administrative Agent shall have received evidence that a Borrowing Request in accordance with the insurance required by requirements of Section 7.02(e2.03 hereof; provided that, no such Borrowing Request shall include any representations or warranties (other than the Specified Representations) is in effect, together with endorsements naming the Administrative Agent, for the benefit of the Lenders, Issuing Banks and Swing Line Lender, or a statement as additional insured and loss payee thereunder to the extent required under Section 7.02(e).
absence (eor existence) Since September 30, 2014, no fact, event of any Default or circumstance has occurred that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse EffectEvent of Default.
(f) The Administrative Agent Borrower shall have received paid all fees payable pursuant to the results of a recent Lien Fee Letter and judgment search the Agency Fee Letter on or prior to the Funding Date and, to the extent invoiced at least two business days prior to the Funding Date, expenses in each relevant jurisdiction with respect case required by the terms of this Agreement to be paid on or prior to the Loan Parties, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted under Section 7.03(b)Funding Date.
(g) The Administrative Agent shall have received all documentation and other information reasonably requested a Solvency Certificate signed by each Lender that is required for compliance with the Patriot Act a Financial Officer (or other “know your customer” and anti-money laundering rules and regulations (which requested information shall have been received at least five (5authorized financial officer) Business Days prior to the Funding Date to the extent requested by the Lenders at least ten (10) Business Days prior to the Funding Date).
(h) The Administrative Agent (for the benefit of itself and the other parties entitled thereto) and the Arrangers shall have received all fees and other amounts due and payable on or prior to the Funding Date (including fees for the account of the Lenders and fees, disbursements and charges of counsel to the Administrative Agent and the Arrangers), including to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date and such notice shall be conclusive and binding (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).form of Exhibit D.
Appears in 1 contract
Funding Date. The obligations of the Lenders to make their respective Term Loans hereunder and the availability of the Revolving Facility Issuing Banks to issue Letters of Credit hereunder shall not become effective on until the first date on which each of the following conditions is satisfied (or waived in accordance with Section 9.03) which date shall occur prior to July 10, 2015 (it being understood and agreed that to the extent the Funding Date does not occur on or prior to July 10, 2015, this Agreement and the Commitments of the Lenders shall automatically terminate without any further action by the Borrower, the Administrative Agent or any other person9.02):
(a) The Administrative Agent Signing Date shall have received from each party hereto or thereto either a counterpart of this Agreement and each other Loan Document signed on behalf of such party or written evidence satisfactory to the Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of such party) that such party has signed a counterpart of this Agreement and each other Loan Document to which it is a party, including, without limitation, the Collateral Agreement and such other Loan Documents as the Administrative Agent or its counsel may have reasonably requestedoccurred.
(b) The Borrower has furnished shall have delivered a Borrowing Request in accordance with the requirements of Section 2.03.
(c) The Lenders shall have received true and complete copies of the Spin-Off Agreements and, to the Administrative Agent each extent requested by any Arranger at least three (3) Business Days prior to the Funding Date, all other material agreements entered into in connection with the Spin-Off. The terms of all such agreements shall be consistent in all material respects with the information set forth in, and the forms of such agreements filed with, the Form 10 or otherwise reasonably satisfactory to the Arrangers (it being agreed that the terms set forth in, and the forms of such agreements filed with, the Form 10 are reasonably satisfactory to the Arrangers), and no term or condition of such agreements shall have been waived, amended or otherwise modified in a manner material and adverse to the rights or interests of the followingLenders without the prior approval of the Arrangers, with sufficient copies for it being agreed that the Arrangers will act reasonably in making any such determination (and if the Borrower notifies the Arrangers of any such waiver, amendment or modification, the Arrangers shall, upon request of the Borrower in writing, confirm to the Borrower whether any such prior approval is required).
(d) The Form 10 shall have been declared effective by the SEC and all conditions to the Spin-Off set forth in the Form 10 shall have been satisfied (or shall be satisfied on the Funding Date immediately following the occurrence of the Spin-Off) or waived (in the case of any waiver material and adverse to the rights or interests of the Lenders, subject to the receipt of the approval of the Arrangers), and the Cabinets Business Transfers, the Spin-Off and the FBHS Cash Payment shall have been consummated or shall be consummated on the Funding Date following the making of the Loans, on terms consistent with applicable law and, in all material respects, with the information set forth in, and the forms of agreements filed with, the Form 10 and the pro forma financial information heretofore delivered to the Arrangers. There shall be no material payments by the Borrower to FBHS in connection with the Spin-Off other than the payment of the FBHS Cash Payment, repayment of existing intercompany debt and other payments described in the Form 10, and the assets, liabilities and capitalization of the Borrower after giving effect to the FBHS Cash Payment and all related transactions shall be consistent in all material respects with the pro forma financial statements heretofore delivered to the Lenders (it being agreed that the FBHS Cash Payment may be in an aggregate amount up to $940,000,000).
(e) The Lenders shall have received (a) a favorable solvency certificate from the chief financial officer of the Borrower dated as of the Funding Date (and after giving effect to the Transactions) and in customary form and substance satisfactory affirming that a favorable solvency opinion (as to solvency of the Borrower and its Subsidiaries) was delivered by a nationally recognized advisory firm to the Board of Directors of FBHS, and (b) copies of the private letter ruling from the Internal Revenue Service, if obtained, and the legal opinions by FBHS (or customary short form opinions of legal counsel relating thereto) as to the tax free nature of the Spin-Off (in each case, on a non- reliance basis).
(f) The Lenders shall have received (i) audited consolidated financial statements of the Borrower for the two most recent fiscal years ended prior to the Funding Date as to which such financial statements are available, (ii) unaudited interim consolidated financial statements of the Borrower for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (i) of this paragraph (f) as to which such financial statements are available (and in any event, for each such quarterly period ending more than forty- five (45) days prior to the Funding Date) (in each case of the preceding clauses (i) and (ii), giving effect to the transfer of the Cabinets Business to the Borrower) and (iii) the Borrower’s most recent projected income statement, balance sheet and cash flows through 2027, in each case giving effect to the Spin-Off and the transactions related thereto, together with such information as the Administrative Agent and the Lenders:
Lenders shall reasonably request (i) including, without limitation, a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer detailed description of the Borrower, certifying that all of the representations assumptions used in this Agreement are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the Funding Date, except to the extent that preparing such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such earlier date and no Default or Unmatured Default has occurred and is continuing or would result from the Advance of the Term Loans on the Funding Date;
(ii) a duly executed Borrowing/Election Notice signed by an Authorized Officer of the Borrowerprojections).
(iiig) There shall be no litigation or administrative proceeding that would reasonably be expected to have a material adverse effect on the written opinion of the Loan Parties’ counsel, addressed to the Administrative Agent, each Issuing Bank and the Lenders, in substantially a form and containing assumptions and qualifications acceptable to the Administrative Agent and its counsel;Spin-Off.
(ivh) a certificate, in form All governmental and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying (A) that the Borrower is in pro forma compliance with the financial covenants set forth in Section 7.04 on the Funding Date, including computations demonstrating compliance in reasonable detail thereof; (B) as to the receipt by the Borrower of the proceeds of the Senior Notes in an amount that, together with the Term Loans made on the Funding Date, is not greater than $1,000,000,000; and (C) as to occurrence of the Spin Transaction;
(v) the (A) Historical Information and (B) the financial projections of the Borrower and its Subsidiaries on a consolidated basis, covering fiscal years 2015 through 2018 (inclusive), in each case on a consolidated basis;
(vi) a completed Perfection Certificate, dated the Funding Date and signed by an Authorized Officer of the Borrower;
(vii) evidence that appropriate Uniform Commercial Code financing statements have been (or, on the Funding Date, will be) duly filed in such office or offices as may be third party approvals necessary or, in the opinion discretion of Administrative Agent, desirable to perfect the Administrative Agent’s Liens in and to the Collateral;
(viii) copies of the Certificate of Incorporation of each Loan Party, together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of incorporation;
(ix) copies, certified by the Secretary or Assistant Secretary of each of the Loan Parties, of its By-Laws and of its Board of Directors’ (or similar body) resolutions authorizing the execution of the Loan Documents entered into by it;
(x) an incumbency certificate, executed by the Secretary or Assistant Secretary of each of the Loan Parties, which shall identify by name and title and bear the original or facsimile signature of the officers of the Loan Parties authorized to sign the Loan Documents and the officers of the Borrower authorized to make borrowings hereunder, upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(xi) a certificate in form and substance reasonably satisfactory to the Administrative Agent, signed by an Authorized Officer of advisable in connection with the Borrower, attesting that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Spin Transaction, are Solvent;
(xii) receipt by the Administrative Agent of updated Schedules 6.07, 6.08, 6.18, 7.03(a), 7.03(b), 7.03(d) and 7.03(i) to replace the corresponding Schedules and Annex attached hereto as of the Escrow Date in form and substance reasonably satisfactory to the Administrative Agent and the Lenders, provided that the Lenders agree that such updated schedules Transactions shall be deemed to be satisfactory if such updated Schedules (i) do not differ from the corresponding Schedules attached hereto as of the Escrow Date in a manner that is material and adverse to the Lenders or (ii) are otherwise satisfactory to the Required Lenders (and any references to any such Schedules in this Credit Agreement shall thereafter refer to such Schedules as the same may have been updated pursuant to this Section 5.01(b)(xii)obtained and be in full force and effect.
(c) (i) The Collateral and Guarantee Requirement shall have been satisfied (provided that, solely with respect to the matters expressly identified in Section 7.02(q), the satisfaction of the conditions set forth in this clause (c) shall not be required on the Funding Date, and shall not be a condition to the obligations of the Lenders to make Loans hereunder on the Funding Date, but shall be required to be accomplished in accordance with Section 7.02(q)) and (ii) the Administrative Agent shall have received satisfactory evidence that all steps have been taken to perfect security interests in the Collateral (including delivery of any certificated Equity Interests and other physical, pledged collateral).
(d) satisfied. The Administrative Agent shall have received evidence that a completed perfection certificate, dated the insurance required Funding Date and signed by Section 7.02(e) is in effectan executive officer or a Financial Officer of the Borrower, together with endorsements naming the Administrative Agentall attachments contemplated thereby, for the benefit of the Lenders, Issuing Banks and Swing Line Lender, as additional insured and loss payee thereunder to the extent required under Section 7.02(e).
(e) Since September 30, 2014, no fact, event or circumstance has occurred that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(f) The Administrative Agent shall have received including the results of a recent Lien and judgment search in each relevant jurisdiction of the Uniform Commercial Code (or equivalent) filings made with respect to the Loan Parties, Parties in the jurisdictions contemplated by the perfection certificate and copies of the financing statements (or similar documents) disclosed by such search shall reveal no and evidence reasonably satisfactory to the Administrative Agent that the Liens on any of the assets of the Loan Parties except for Liens indicated by such financing statements (or similar documents) are permitted under Section 7.03(b)6.02 or have been, or substantially contemporaneously with the initial funding of Loans on the Funding Date will be, released.
(gj) The Administrative Agent shall have received all documentation and other information reasonably requested by Agent, each Lender that is required for compliance with the Patriot Act or other “know your customer” and anti-money laundering rules and regulations (which requested information shall have been received at least five (5) Business Days prior to the Funding Date to the extent requested by the Lenders at least ten (10) Business Days prior to the Funding Date).
(h) The Administrative Agent (for the benefit of itself and the other parties entitled thereto) and the Arrangers each Arranger shall have received all fees and other amounts due and payable on or prior to the Funding Date (including fees for the account of the Lenders and feesDate, disbursements and charges of counsel to the Administrative Agent and the Arrangers)including, including to the extent invoiced, reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(k) There shall not have occurred since December 26, 2021, any event, condition or circumstance that has had or would reasonably be expected to have a material adverse effect on the business, results of operations, properties, assets or financial condition of the Borrower and its subsidiaries, taken as a whole, or on the Cabinets Business.
(l) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Funding Date) of counsel for the Loan Parties (which may include opinions of in house counsel) in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Loan Parties, this Agreement or the Transactions as the Administrative Agent shall reasonably request. The Borrower hereby requests such counsel to deliver such opinion.
(i) Each Lender, as applicable, shall have received from the Borrower any promissory notes requested pursuant to, and in accordance with, Section 2.10(e), and (ii) subject to Section 5.10(e), the Administrative Agent shall have received duly executed copies of the Subsidiary Guaranty, the Security Agreement and the other documents and certificates identified on Exhibit E attached hereto (including, without limitation, documents and certificates which the Administrative Agent may reasonably request relating to the organization, existence and good standing of the Loan Parties, the authorization of the Transactions and any other legal matters relating to the Loan Parties, this Agreement or the Transactions), all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(n) The Administrative Agent shall have received a certificate, dated the Funding Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming (i) that the Funding Date Representations shall be true and correct in all material respects (and in all respects if qualified by Material Adverse Effect or other materiality qualifier) on and as of the Funding Date except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct in all material respects (and in all respects if qualified by Material Adverse Effect or other materiality qualifier) on and as of such earlier date, (ii) that, as of the Funding Date, no Default shall have occurred and be continuing, and (iii) compliance with the conditions set forth in paragraphs (d), (g), (h) and (k) of this Section 4.02.
(o) The Administrative Agent shall have received updated disclosure schedules to the Credit Agreement reflecting updates after giving effect to the Spin-Off and related Transactions, which schedules shall be reasonably acceptable to the Administrative Agent. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date Date, and such notice shall be conclusive and binding binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on March 31, 2023 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
Appears in 1 contract
Sources: Credit Agreement (MasterBrand, Inc.)
Funding Date. The obligations of the Lenders to make their respective Term Loans hereunder and the availability of the Revolving Facility L/C Issuers to issue Letters of Credit hereunder shall not become effective on until the first date on which each of the following conditions is has been satisfied (or waived in accordance with Section 9.03) which date shall occur prior to July 10, 2015 (it being understood and agreed that to the extent the Funding Date does not occur on or prior to July 10, 2015, this Agreement and the Commitments of the Lenders shall automatically terminate without any further action by the Borrower, the Administrative Agent or any other person9.08):
(a) The Effective Date shall have occurred.
(b) The final terms of the Spin-Off Documents shall be consistent in all material respects with the description thereof in the Registration Statement on file with the SEC as of the Effective Date, other than modifications, amendments, waivers or consents thereto that (i) are not materially adverse to the Lead Arrangers or the Lenders in their capacities as such or (ii) are consented to by the Lead Arrangers and the Required Lenders.
(c) Since December 31, 2020, there shall not have occurred any fact, event, change, condition, occurrence or circumstance that, individually or in the aggregate, has, or would reasonably be expected to have a Material Adverse Effect.
(d) The Administrative Agent (or its counsel) shall have received from the Borrower and each other Loan Party a duly executed counterpart of the Collateral Agreement signed on behalf of such party.
(e) Subject to Section 5.18, the Collateral and Guarantee Requirement shall have been satisfied and the Administrative Agent shall have received a completed Perfection Certificate dated the Funding Date and signed by a Responsible Officer of the Borrower, together with all attachments contemplated thereby. All documents required to perfect or evidence the Collateral Agent’s first priority security interest in and liens on the Collateral (including, without limitation, all certificates evidencing pledged capital stock or membership or partnership interests, as applicable, with accompanying executed stock powers, all UCC financing statements to be filed in the applicable government UCC filing offices, all intellectual property security agreements to be filed with the United States Copyright Office or the United States Patent and Trademark Office, as applicable) will have been executed and/or delivered and, to the extent applicable, be in proper form for filing (including UCC and other lien searches, intellectual property searches and insurance certificates).
(f) The Administrative Agent shall have received from each party hereto satisfactory results of a recent search of all effective UCC financing statements (or thereto either a counterpart equivalent filings) made with respect to any personal property of this Agreement and each other any Loan Document signed Party in the appropriate jurisdictions.
(g) The Administrative Agent shall have received, on behalf of such party or written evidence satisfactory to the Administrative Agent (which may include facsimile or electronic transmission of a signed signature page of such party) that such party has signed a counterpart of this Agreement and each other Loan Document to which it is a party, including, without limitationitself, the Collateral Agreement and such other Loan Documents as Agent, the Administrative Agent or its counsel may have reasonably requested.
(b) The Borrower has furnished to the Administrative Agent each of the following, with sufficient copies for the Lenders, all in form and substance satisfactory to the Administrative Agent L/C Issuers and the Lenders:
(i) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying that all of the representations in this Agreement are true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the Funding Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such earlier date and no Default or Unmatured Default has occurred and is continuing or would result from the Advance of the Term Loans on the Funding Date;
(ii) a duly executed Borrowing/Election Notice signed by an Authorized Officer of the Borrower.
(iii) the written opinion of the Loan Parties’ counsel, addressed to the Administrative Agent, each Issuing Bank and the Lenders, in substantially a form and containing assumptions and qualifications acceptable to the Administrative Agent and its counsel;
(iv) a certificate, in form and substance satisfactory to the Administrative Agent signed by an Authorized Officer of the Borrower, certifying (A) that the Borrower is in pro forma compliance with the financial covenants set forth in Section 7.04 Lenders on the Funding Date, including computations demonstrating compliance in reasonable detail thereof; (B) as to the receipt by the Borrower of the proceeds of the Senior Notes in an amount that, together with the Term Loans made on the Funding Date, is not greater than $1,000,000,000; and (C) as to occurrence of the Spin Transaction;
(v) the (A) Historical Information and (B) the financial projections of the Borrower and its Subsidiaries on a consolidated basis, covering fiscal years 2015 through 2018 (inclusive), in each case on a consolidated basis;
(vi) a completed Perfection Certificate, dated the Funding Date and signed by an Authorized Officer of the Borrower;
(vii) evidence that appropriate Uniform Commercial Code financing statements have been (or, on the Funding Date, will be) duly filed in such office or offices as may be necessary or, in the customary written opinion of Administrative Agent(i) ▇▇▇▇▇▇▇▇▇ LLP, desirable to perfect the Administrative Agent’s Liens in and to the Collateral;
(viii) copies of the Certificate of Incorporation of each Loan Party, together with all amendments and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of incorporation;
(ix) copies, certified by the Secretary or Assistant Secretary of each of special counsel for the Loan Parties, of its By-Laws and of its Board of Directors’ (or similar bodyii) resolutions authorizing the execution of Miller, Johnson, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.L.C., Michigan counsel for the Loan Documents entered into by it;
Parties and (xiii) an incumbency certificate▇▇▇▇▇▇▇ & ▇▇▇, executed by the Secretary or Assistant Secretary of each of Pennsylvania counsel for the Loan Parties, which shall identify by name and title and bear the original or facsimile signature of the officers of the Loan Parties authorized to sign the Loan Documents and the officers of the Borrower authorized to make borrowings hereunderin each case, upon which certificate the Lenders shall be entitled to rely until informed of any change in writing by the Borrower;
(xi) a certificate in form and substance reasonably satisfactory to the Administrative Agent, signed by an Authorized Officer of the Borrower, attesting that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the Spin Transaction, are Solvent;
(xii) receipt by the Administrative Agent of updated Schedules 6.07, 6.08, 6.18, 7.03(a), 7.03(b), 7.03(d) and 7.03(i) to replace the corresponding Schedules and Annex attached hereto as of the Escrow Date in form and substance reasonably satisfactory to the Administrative Agent and dated the Lenders, provided that the Lenders agree that such updated schedules shall be deemed to be satisfactory if such updated Schedules (i) do not differ from the corresponding Schedules attached hereto as of the Escrow Date in a manner that is material and adverse to the Lenders or (ii) are otherwise satisfactory to the Required Lenders (and any references to any such Schedules in this Credit Agreement shall thereafter refer to such Schedules as the same may have been updated pursuant to this Section 5.01(b)(xii)Funding Date.
(c) (i) The Collateral and Guarantee Requirement shall have been satisfied (provided that, solely with respect to the matters expressly identified in Section 7.02(q), the satisfaction of the conditions set forth in this clause (c) shall not be required on the Funding Date, and shall not be a condition to the obligations of the Lenders to make Loans hereunder on the Funding Date, but shall be required to be accomplished in accordance with Section 7.02(q)) and (ii) the Administrative Agent shall have received satisfactory evidence that all steps have been taken to perfect security interests in the Collateral (including delivery of any certificated Equity Interests and other physical, pledged collateral).
(d) The Administrative Agent shall have received evidence that the insurance required by Section 7.02(e) is in effect, together with endorsements naming the Administrative Agent, for the benefit of the Lenders, Issuing Banks and Swing Line Lender, as additional insured and loss payee thereunder to the extent required under Section 7.02(e).
(e) Since September 30, 2014, no fact, event or circumstance has occurred that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(fh) The Administrative Agent shall have received the results following:
(i) certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Loan Party (including a bringdown certificate as to the good standing of the Borrower);
(ii) a copy of the certificate or articles of incorporation, partnership agreement or limited liability agreement, including all amendments thereto, or other relevant constitutional documents under applicable law of each Guarantor, (A) in the case of a corporation, certified as of a recent Lien date by the Secretary of State (or other similar official) and judgment search a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of each such Guarantor as of a recent date from such Secretary of State (or other similar official) or (B) in the case of a partnership or limited liability company, certified by the Secretary or Assistant Secretary, or the general partner, managing member or sole member, of each such Guarantor;
(iii) a certificate of the Secretary, Assistant Secretary, Director, Vice President, President or similar officer, or the general partner, managing member or sole member, of each Guarantor, in each relevant jurisdiction case dated the Funding Date and certifying:
(A) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, memorandum and articles of association, limited liability company agreement or other equivalent governing documents) of such Guarantor as in effect on the Funding Date and at all times since a date prior to the date of the resolutions described in clause (B) below,
(B) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors (or equivalent governing body) of such Guarantor (or its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect on the Funding Date,
(C) that the certificate or articles of incorporation, partnership agreement or limited liability agreement of such Guarantor has not been amended since the date of the last amendment thereto disclosed pursuant to clause (ii) above, and
(D) as to the incumbency and specimen signature of each officer or director executing any Loan Document or any other document delivered in connection herewith on behalf of such Guarantor;
(iv) a certificate of the Secretary, Assistant Secretary, Director, Vice President, President or similar officer, of the Borrower, dated the Funding Date, and certifying that there have been no material changes to the documents delivered pursuant to Section 4.01(e)(i) (other than any such changes made in connection with the Spin-Off as reflected in any amendments or modifications to such documents that are attached to such certificate) and Section 4.01(e)(ii) with respect to the Loan PartiesBorrower, and such search shall reveal no Liens on any of in each case, since the assets of the Loan Parties except for Liens permitted under Effective Date; and
(v) a Borrowing Request as required by Section 7.03(b)2.03.
(gi) The Administrative Agent shall have received all documentation a solvency certificate substantially in the form of Exhibit D and other information reasonably requested signed by each Lender that is required for compliance with the Patriot Act chief financial officer or other “know your customer” another Responsible Officer of the Borrower confirming the solvency of the Borrower and anti-money laundering rules and regulations (which requested information shall have been received at least five (5) Business Days prior its Restricted Subsidiaries on a consolidated basis after giving effect to the Funding Date to the extent requested by the Lenders at least ten (10) Business Days prior to the Funding Date)Transactions.
(hj) The Administrative Agent (for the benefit of itself Agents and the other parties entitled thereto) and the Lead Arrangers shall have received all fees and other amounts previously agreed in writing by the Administrative Agent, the Lead Arrangers, the other Agents and the Borrower to be due and payable on or prior to the Funding Date (including fees for the account of the Lenders and feesDate, disbursements and charges of counsel to the Administrative Agent and the Arrangers)including, including to the extent invoicedinvoiced to the Borrower at least three (3) Business Days prior to the Funding Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party under any Loan Document.
(k) On the Funding Date, after giving pro forma effect to the Transactions, the Borrower hereundershall have unused Revolving Commitments under the Revolving Facility of not less than $400,000,000.
(l) All Governmental Authority and third party approvals and all equity holder and board of directors (or comparable entity management body) authorizations in connection with the Transactions contemplated to occur on the Funding Date shall have been obtained and be in full force and effect, or will be obtained substantially concurrently with the occurrence of the Funding Date.
(m) The Borrower shall be in compliance with the Financial Performance Covenants on the Funding Date after giving pro forma effect to the Transactions.
(n) The Specified Representations shall be true and correct in all material respects on the Funding Date (unless such representations relate to an earlier date, in which case, such representations shall have been true and correct in all material respects as of such earlier date); provided, that, any such Specified Representations which are qualified by materiality, material adverse effect or similar language shall be true and correct in all respects.
(o) After giving effect to the Transactions on the Funding Date, no Default or Event of Default shall have occurred and be continuing.
(p) Immediately after giving effect to the Transactions and the other transactions contemplated hereby, none of the Borrower or any Restricted Subsidiary shall have outstanding any Indebtedness, other than (i) Indebtedness under this Agreement, (ii) the Senior Notes and (iii) other Indebtedness permitted by Section 6.01.
(q) The Senior Notes shall have been issued with a gross aggregate principal amount of no less than $2,100,000,000.
(r) The Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower as to the matters set forth in clauses (c), (m), (n), (o), (p) and (s) of this Section 4.02.
(s) The Spin-Off Date shall be scheduled to occur on or before the Spin-Off Deadline, and the Spin-Off Payments shall have been made, or shall be scheduled to be made, prior to the Spin-Off Deadline (but in any event, no later than the Spin-Off Date).
(t) At least five (5) Business Days prior to the Funding Date, the Administrative Agent, the Lead Arrangers and the Lenders shall have received all documentation and other information required by regulatory authorities with respect to the Guarantors under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the U.S. PATRIOT Act, that has been reasonably requested by the Administrative Agent (on its own behalf or on behalf of any Lead Arranger or Lender) at least ten (10) Business Days in advance of the Funding Date.
(u) To the extent any Guarantor qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least three (3) Business Days prior to the Funding Date, each Lender that has requested in a written notice to the Borrower at least ten (10) days prior to the Funding Date, shall have received a Beneficial Ownership Certification in the relation to such Guarantor. The Administrative Agent shall notify the Borrower and the Lenders of the Funding Date Date, and such notice shall be conclusive and binding binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and of the L/C Issuers to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived in accordance with the Credit Documentation) on or prior to 5:00 p.m., New York City time on June 24, 2021 (and, in the event such conditions are not so satisfied or waived, the Credit Documentation and the Commitments shall terminate at such time).
Appears in 1 contract