Initial Credit Event. The obligation of each Lender and the L/C Issuer to participate in the initial Credit Event hereunder is subject to satisfaction or waiver by the applicable party of the following conditions precedent: (a) The transactions contemplated by the Closing Date Acquisition Agreement shall be consummated substantially concurrently with the initial funding under the Credits in accordance with the terms of the draft Closing Date Acquisition Agreement (without any amendment, modification or waiver of any of the provisions thereof that would be materially adverse to the Lenders without the consent of Administrative Agent); provided that (i) a reduction in the purchase price under the Closing Date Acquisition Agreement shall not be deemed to be materially adverse to the Lenders or the Administrative Agent so long as such decrease is allocated to reduce the Term Loan Commitments, (ii) any purchase price adjustment expressly contemplated by the Closing Date Acquisition Agreement (including any working capital purchase price adjustment) shall not be considered an amendment or waiver of the Closing Date Acquisition Agreement and (iii) (A) any change to the definition of “Material Adverse Effect” contained in the Closing Date Acquisition Agreement shall be deemed to be materially adverse to Lenders, (B) any amendment of the minimum inside date for the “Closing Date” as defined and set forth in the Closing Date Acquisition Agreement shall be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent, and (C) any amendment or modification to any of the provisions relating to the liability, jurisdiction or status as a third party beneficiary under the Closing Date Acquisition Agreement of the Lenders or the Administrative Agent shall be deemed to be
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Samples: Credit Agreement (Sterling Infrastructure, Inc.), Credit Agreement (Sterling Infrastructure, Inc.)
Initial Credit Event. The obligation of each Lender and the L/C Issuer to participate in the initial Credit Event hereunder is subject to satisfaction or waiver by the applicable party of the following conditions precedent: :
(a) The transactions contemplated by the Closing Date Acquisition Agreement shall be consummated substantially concurrently with the initial funding under the Credits in accordance with the terms of the draft Closing Date Acquisition Agreement (without any amendment, modification or waiver of any of the provisions thereof that would be materially adverse to the Lenders without the consent of Administrative Agent); provided that (i) a reduction in the purchase price under the Closing Date Acquisition Agreement shall not be deemed to be materially adverse to the Lenders or the Administrative Agent so long as such decrease is allocated to reduce the Term Loan Commitments, (ii) any purchase price adjustment expressly contemplated by the Closing Date Acquisition Agreement (including any working capital purchase price adjustment) shall not be considered an amendment or waiver of the Closing Date Acquisition Agreement and (iii) (A) any change to the definition of “Material Adverse Effect” contained in the Closing Date Acquisition Agreement shall be deemed to be materially adverse to Lenders, (B) any amendment of the minimum inside date for the “Closing Date” as defined and set forth in the Closing Date Acquisition Agreement shall be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent, and (C) any amendment or modification to any of the provisions relating to the liability, jurisdiction or status as a third party beneficiary under the Closing Date Acquisition Agreement of the Lenders or the Administrative Agent shall be deemed to bebe materially adverse to the interests of the Lenders and the Administrative Agent; and there shall be no injunction, temporary restraining order, or other legal action in effect which prohibits the closing of the Closing Date Acquisition or the closing and funding of the Credits;
(b) The Administrative Agent shall have received a Solvency Certificate of a Responsible Officer substantially in the form attached hereto as Exhibit J;
(c) The Administrative Agent shall have received (a) five (5)‑year projected financial statements (the “Financial Model”) which gives pro forma effect to the Closing Date Acquisition and is otherwise acceptable to the Administrative Agent and (b) audited consolidated balance sheets and related statements of income and cash flows of the Borrower and its Subsidiaries for the last three (3) fiscal years ended at least ninety (90) days prior to the Closing Date, (c) unaudited consolidated balance sheets and related statements of income of the Borrower and its Subsidiaries for each fiscal quarter ended after the close of its most recent fiscal year and at least forty-five (45) days prior to the Closing Date, (d) a pro forma unaudited consolidated balance sheet and related statements of income and cash flows of the Borrower as of and for the 12‑month period ending on the last day of the most recently completed twelve consecutive month period ended as of June 30, 2019, prepared after giving effect to the Transactions as if the Transactions had occurred at the beginning of such period, and (e) evidence of either an audit by a nationally recognized accounting firm or review (which may be in the form of a buy-side quality of earnings report) of the Closing Date Target by an accounting firm reasonably acceptable to the Administrative Agent;
(i) Since December 31, 2018, with respect to the Loan Parties, there shall not have occurred any change or event that has resulted in, or would reasonably be expected to have a material adverse change in any of the condition (financial or otherwise), business, performance, operations or property of the Borrower and its Subsidiaries, taken as a whole; and (ii) since December 31, 2018, with respect to the Closing Date Target, there shall not have occurred any change or event that has resulted in, or would reasonably be expected to have, a “Material Adverse Effect” (as defined in the Closing Date Acquisition Agreement);
(e) Administrative Agent shall have received each of the following, in each case, (i) duly executed by all applicable parties, (ii) dated a date satisfactory to Administrative Agent, and (iii) in form and substance satisfactory to Administrative Agent:
(i) this Agreement duly executed by the Loan Parties and the Lenders;
(ii) if requested by any Lender, such Lender’s duly executed Notes of Borrower dated the date hereof and otherwise in compliance with the provisions of Section 2.11;
(iii) the Security Agreement duly executed by the Loan Parties, together with, and subject to Section 4.1(j) below, (i) original stock certificates or other similar instruments or securities representing all of the issued and outstanding equity interests in each Subsidiary (other than any Affiliated Entity or Project Specific JV constituting, in either case, an Excluded Subsidiary, limited in the case of any first tier Foreign Subsidiary to 65% of the Voting Stock and 100% of any other equity interests as provided in the Security Agreement) as of the Closing Date that are required to be pledged pursuant to the Security Agreement, (ii) stock powers for the Collateral consisting of the equity interest in each Subsidiary required to be pledged pursuant to the Security Agreement executed in blank and undated, (iii) UCC financing statements to be filed against each Loan Party, as debtor, in favor of Administrative Agent, as secured party, and (iv) to the extent applicable, patent, trademark, and copyright collateral agreements, in form and substance satisfactory to the Administrative Agent, to the extent requested by Administrative Agent;
(iv) evidence of insurance required to be maintained under the Loan Documents;
(v) copies of each Loan Party’s articles of incorporation and bylaws (or comparable organizational documents) and any amendments thereto, certified in each instance by its Secretary or Assistant Secretary or other duly authorized officer;
(vi) copies of resolutions of each Loan Party’s Board of Directors (or similar governing body) authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party and the consummation of the transactions contemplated hereby and thereby, together with specimen signatures of the persons authorized to execute such documents on each Loan Party’s behalf, all certified in each instance by its Secretary or Assistant Secretary or other duly authorized officer;
(vii) copies of the certificates of good standing for each Loan Party (dated no earlier than 30 days prior to the date hereof) from the office of the secretary of the state of its incorporation or organization and of each state in which it is qualified to do business as a foreign corporation or organization (except for such foreign jurisdictions to the extent that failure to be so qualified would not have a Material Adverse Effect);
(viii) financing statement, tax, and judgment lien search results against the Property of each Loan Party evidencing the absence of Liens on its Property except as permitted by Section 7.2;
(ix) evidence that the Borrower has entered into Bonding Agreements necessary for the conduct of its business in the ordinary course of its operations;
(x) the favorable written opinions of counsels to each Loan Party, in form and substance reasonably satisfactory to Administrative Agent; and
(xi) an Intercreditor Agreement in respect of any Bonding Agreements of the Borrower or any other Loan Party in effect on the Closing Date to the extent reasonably requested by the Administrative Agent.
(f) The representations and warranties set forth in this Agreement (other than in Section 5.6) and in the other Loan Documents shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on the date of such extension of credit under the Credits (except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date);
(g) The Specified Acquisition Agreement Representations shall be true and correct in all respects;
(h) Administrative Agent shall have received (i) at least five (5) days prior to the Closing Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti‑money laundering rules and regulations, including, without limitation, the PATRIOT Act that has been reasonably requested by any Lender at least ten (10) business days in advance of the Closing Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Closing Date, a Beneficial Ownership Certification in relation to the Borrower;
(i) Payment of (i) all fees and compensation required to be paid on the Closing Date and (ii) expenses required to be paid on the Closing Date to the extent invoiced at least two (2) Business Days prior to the Closing Date shall, in each case, have been paid (which amounts may be offset against the proceeds of the initial borrowing of Credits hereunder);
(j) All documents and instruments required to create and perfect the security interests of the Administrative Agent in the Collateral of the Loan Parties shall have been executed and delivered and, if applicable, be in proper form for filing, except to the extent any Collateral (other than to the extent that a lien on such Collateral may be perfected by (x) the filing of a financing statement under the Uniform Commercial Code or (y) the delivery of stock certificates (together with a stock power or similar instrument of transfer endorsed in blank for the relevant certificate) which are required to be delivered (and with respect to the Closing Date Target and its Subsidiaries, so long as the Loan Parties have used commercially reasonable efforts to obtain such certificates, solely to the extent such stock certificates are received from the Closing Date Target on or prior to the Closing Date)) is not or cannot be provided or the security interests in favor of the Administrative Agent are not or cannot be perfected on the Closing Date after the Loan Parties’ use of commercially reasonable efforts to do so;
(k) The Seller Note shall have been issued in an aggregate principal amount not to exceed $10,000,000;
(l) On the Closing Date, on a pro forma basis, and giving effect to the initial extension of credit and closing of the Closing Date Acquisition on the Closing Date, the Total Leverage Ratio shall not be greater than 3.30 to 1.00;
(m) Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer certifying as to the matters described in clauses (d), (f), (g) and (l) above (with reasonably detailed calculations in the case of clause (l)); and
(n) Administrative Agent shall have received the notice required by Section 2.6 for any Borrowing to be made on the Closing Date, and in the case of the issuance of any Letter of Credit the L/C Issuer shall have received a duly completed Application for such Letter of Credit together with any fees called for by Section 2.12.
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Initial Credit Event. The obligation of each Lender and On the L/C Issuer to participate in the initial Credit Event hereunder is subject to satisfaction or waiver by the applicable party of the following conditions precedent: Closing Date:
(a) The transactions contemplated Administrative Agent shall have received an opinion of Proskauer Rose LLP, counsel for the RCS Companies (i) dated the Closing Date, (ii) addressed to the Issuing Bank, the Administrative Agent, the Collateral Agent and the Lenders on the Closing Date, and (iii) covering customary matters relating to the Loan Documents and the Transactions.
(b) This Agreement, the Guarantee Agreement and the Security Documents listed on Schedule 4.02(b) or counterparts hereof and thereof shall have been duly executed by the applicable Loan Parties and delivered to the Administrative Agent, the Collateral Agent and the Lenders.
(c) The Administrative Agent shall have received a certificate of each Loan Party substantially in the form of Exhibit H, with appropriate insertions, including such Loan Party’s organizational or constitutional documents and resolutions (including, if applicable, shareholder resolutions) or board minutes authorizing the execution, delivery and performance of its obligations under the Loan Documents and, in the case of the Borrower, the borrowings hereunder.
(d) The Target Representations and the Specified Representations shall be true and correct in all material respects (and in all respects with respect to representations qualified by materiality) on and as of the Closing Date Acquisition Agreement with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be consummated substantially true and correct in all material respects (and in all respects with respect to representations qualified by materiality) as of such earlier date and the Administrative Agent shall have received a customary officer’s certificate to that effect, duly executed by a Responsible Officer of the RCS Companies.
(e) The Administrative Agent and Joint Lead Arrangers shall have received all Fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced at least three (3) Business Days prior to the Closing Date, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Companies on the Closing Date.
(f) The Collateral Agent shall have received (i) all Pledged Securities (such term (or similar term) as defined in the Collateral Agreement), if any, required to be delivered to the Collateral Agent on the Closing Date pursuant to the Collateral Agreement, together with duly executed undated blank stock powers, or other equivalent instruments of transfer reasonably acceptable to the Collateral Agent, (ii) evidence that all Uniform Commercial Code financing statements and filings with the United States Patent and Trademark Office and United States Copyright Office, reasonably requested by the Collateral Agent to be filed, registered or recorded to create the Liens intended to be created by any Security Document and perfect such Liens to the extent required by, and with the priority required by, such Security Document shall have been delivered to the Collateral Agent for filing, registration or recording or take any other actions reasonably required to be taken by the Administrative Agent under the Loan Documents and (iii) a certificate from the applicable Loan Party’s insurance broker or other evidence reasonably satisfactory to it that all insurance required to be maintained pursuant to Section 5.02 is in full force and effect, together with endorsements naming the Collateral Agent, for the benefit of Secured Parties, as additional insured and loss payee thereunder to the extent required under Section 5.02; provided that to extent that the Loan Parties are unable to perfect the security interests granted pursuant to the Security Documents on the Closing Date after their use of commercially reasonable efforts to do so, such security interests (other than any Collateral the security interest in which may be perfected by the filing of a UCC financing statement, by intellectual property filings with the United States Patent and Trademark Office or the United States Copyright Office or by delivery of stock certificates) may be perfected within 90 days after the Closing Date (or such later date as the Administrative Agent may agree).
(g) The Collateral Agent shall have received a Perfection Certificate dated the Closing Date and duly executed by a Responsible Officer of each of the Loan Parties.
(h) Substantially concurrently with the initial funding of the Loans on the Closing Date, all principal, premium, if any, interest, fees and other amounts due or outstanding under the Credits Existing Debt shall have been paid in accordance with full, the terms of the draft Closing Date Acquisition Agreement (without any amendment, modification or waiver of any of the provisions commitments thereunder terminated and all guarantees and security in support thereof that would be materially adverse to the Lenders without the consent of Administrative Agent); provided that (i) a reduction in the purchase price under the Closing Date Acquisition Agreement shall not be deemed to be materially adverse to the Lenders or the Administrative Agent so long as such decrease is allocated to reduce the Term Loan Commitments, (ii) any purchase price adjustment expressly contemplated by the Closing Date Acquisition Agreement (including any working capital purchase price adjustment) shall not be considered an amendment or waiver of the Closing Date Acquisition Agreement discharged and (iii) (A) any change to the definition of “Material Adverse Effect” contained in the Closing Date Acquisition Agreement shall be deemed to be materially adverse to Lenders, (B) any amendment of the minimum inside date for the “Closing Date” as defined and set forth in the Closing Date Acquisition Agreement shall be deemed to be materially adverse to the interests of the Lenders and the Administrative Agentreleased, and (C) any amendment or modification to any of the provisions relating to the liability, jurisdiction or status as a third party beneficiary under the Closing Date Acquisition Agreement of the Lenders or the Administrative Agent shall be deemed to behave received reasonably satisfactory evidence thereof.
(i) The Lenders shall have received the Historical Financial Statements and the Pro Forma Financial Statements.
Appears in 1 contract
Samples: Credit Agreement (RCS Capital Corp)
Initial Credit Event. The obligation of each Lender and the L/C Issuer to participate in the initial Credit Event hereunder is subject to satisfaction or waiver by the applicable party of the following conditions precedent: (a) The transactions contemplated by the Closing Date Acquisition Agreement shall be consummated substantially concurrently with the initial funding under the Credits in accordance with the terms of the draft Closing Date Acquisition Agreement (without any amendment, modification or waiver of any of the provisions thereof that would be materially adverse to the Lenders without the consent of Administrative Agent); provided that (i) a reduction in the purchase price under the Closing Date Acquisition Agreement shall not be deemed to be materially adverse to the Lenders or the Administrative Agent so long as such decrease is allocated to reduce the Term Loan Commitments, (ii) any purchase price adjustment expressly contemplated by the Closing Date Acquisition Agreement (including any working capital purchase price adjustment) shall not be considered an amendment or waiver of the Closing Date Acquisition Agreement and (iii) (A) any change to the definition of “Material Adverse Effect” contained in the Closing Date Acquisition Agreement shall be deemed to be materially adverse to Lenders, (B) any amendment of the minimum inside date for the “Closing Date” as defined and set forth in the Closing Date Acquisition Agreement shall be deemed to be materially adverse to the interests of the Lenders and the Administrative Agent, and (C) any amendment or modification to any of the provisions relating to the liability, jurisdiction or status as a third party beneficiary under the Closing Date Acquisition Agreement of the Lenders or the Administrative Agent shall be deemed to bebe materially adverse to the interests of the Lenders and the Administrative Agent; and there shall be no injunction, temporary restraining order, or other legal action in effect which prohibits the closing of the Closing Date Acquisition or the closing and funding of the Credits; (b) The Administrative Agent shall have received a Solvency Certificate of a Responsible Officer substantially in the form attached hereto as Exhibit J; (c) The Administrative Agent shall have received (a) five (5)-year projected financial statements (the “Financial Model”) which gives pro forma effect to the Closing Date Acquisition and is otherwise acceptable to the Administrative Agent and (b) audited consolidated balance sheets and related statements of income and cash flows of the Borrower and its Subsidiaries for the last three (3) fiscal years ended at least ninety (90) days prior to the Closing Date, (c) unaudited consolidated balance sheets and related statements of income of the Borrower and its Subsidiaries for each fiscal quarter ended after the close of its most recent fiscal year and at least forty-five (45) days prior to the Closing Date, (d) a pro forma unaudited consolidated balance sheet and related statements of income and cash flows of the Borrower as of and for the 12-month period ending on the last day of the most recently completed twelve consecutive month period ended as of June 30, 2019, prepared after giving effect to the Transactions as if the Transactions had occurred at the beginning of such period, and (e) evidence of either an audit by a nationally recognized accounting firm or review (which may be in the form of a buy-side quality of earnings report) of the Closing Date Target by an accounting firm reasonably acceptable to the Administrative Agent; (d)
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