Conditions of Effectiveness. This Agreement shall become effective if, on or before September 18, 2018, all of the following conditions precedent have been met: (a) The Administrative Agent's receipt of the following, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders: (i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower; (ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower; (iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with: (A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and (B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby; (iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party; (v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII; (vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable; (vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed; (viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request; (ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party; (x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and (xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder; (b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid. (c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). (d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 3 contracts
Sources: Credit Agreement (Wintrust Financial Corp), Credit Agreement (Wintrust Financial Corp), Credit Agreement (Wintrust Financial Corp)
Conditions of Effectiveness. This Agreement Amendment shall become effective ifas of the date first above written when, on or before September 18and only when (x) the Agent shall have received counterparts of this Amendment executed by the Borrower and the Required Lenders or, 2018as to any of the Lenders, advice satisfactory to the Agent that such Lender has executed this Amendment, (y) the Borrower shall have paid to the Agent for the account of each of the Lenders that has approved this Amendment a fee equal to 0.075% of the Commitments of such Lenders and (z) the Agent shall have additionally received all of the following conditions precedent have been metdocuments, each such document (unless otherwise specified) dated the date of receipt thereof by the Agent (unless otherwise specified) and in sufficient copies for each Lender, in form and substance satisfactory to the Agent (unless otherwise specified) and in sufficient copies for each Lender:
(a) The Administrative Agent's receipt Certified copies of the following, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts the resolutions of the Board of Directors of the Borrower approving this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender Amendment and the Borrower;
Collateral Documents (as hereinafter defined) to which it is or is to be a party, and the matters contemplated hereby and thereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Loan Documents and the matters contemplated hereby and thereby.
(b) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and the Loan Documents to which they are or are to be a Revolving Credit Note party and a Term Note the other documents to be delivered hereunder and thereunder.
(c) A favorable opinion of corporate counsel for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each A, hereto and as to such other pledge agreement supplement delivered in connection therewith, in each case matters as amended, any Lender through the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, A certificate signed by a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality duly authorized officer of the provisions Borrower stating that:
(i) The representations and warranties contained in Section 3 are correct in all material respects on and as of the last paragraph date of Section 10.03, for purposes such certificate as though made on and as of determining compliance with the conditions specified in this Section 4.01, each Lender such date; and
(ii) No event has occurred and is continuing that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to constitutes a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoDefault.
Appears in 2 contracts
Sources: Credit Agreement (Avaya Inc), Credit Agreement (Avaya Inc)
Conditions of Effectiveness. This (a) The effectiveness of this Agreement shall become effective if, on is subject to the satisfaction (or before September 18, 2018, all waiver) of the following conditions precedent have been metprecedent:
(ai) The Administrative Agent's receipt of Agent shall have received the following, each of which shall be originals, "pdfs" originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified), each properly executed by a Responsible OfficerOfficer of the Borrower (unless otherwise specified), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i1) this Agreement executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, by each Lender and the Borrowerparty hereto;
(ii2) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence favor of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created therebyeach Lender requesting a Note;
(iv3) such certificates of or resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents Documents;
(4) such documents and certifications as the Administrative Agent may reasonably require to which evidence that the Borrower is a party duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to be a party;engage in business in the state of its organization; and
(v5) Borrower shall have delivered to the Administrative Agent a certificate, in form favorable opinions of ▇▇▇▇▇▇▇▇ and substance reasonably satisfactory to the Administrative Agent, ▇▇▇▇▇▇▇▇ LLP and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower’s General Counsel, addressed to the Administrative Agent and each Lender, as to customary the matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;set forth in Exhibit E.
(ix6) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the The Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance evidence reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in it that any and all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder fees and the termination of all commitments thereunder;
(b) All fees expenses required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid pursuant to the Lenders on or before Commitment Letter and the Closing Date shall Fee Letter have been paid.
(c7) Unless waived by the Administrative Agent, The representations and warranties of the Borrower contained in Article V shall have paid be true and correct in all reasonable material respects on and documented out-of-pocket fees, charges and disbursements as of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus except to the extent that such additional amounts representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such feesearlier date.
(8) No Default shall exist.
(b) Upon the satisfaction of all of the conditions to effectiveness (or waiver thereof) set forth in Section 4.01(a), charges and disbursements as the Administrative Agent shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between promptly notify the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to Lenders of the Administrative Agenteffectiveness of this Agreement, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement such notice shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretobinding on all parties hereto.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Pmi Group Inc), Revolving Credit Agreement (Pmi Group Inc)
Conditions of Effectiveness. This Agreement Amendment shall become effective ifas of the date when, on or before September 18and only when (the “Amendment No. 2 Effective Date”), 2018, all each of the following conditions precedent shall have been metsatisfied or waived:
(ai) The Administrative Agent's receipt Agent shall have received counterparts of this Amendment executed by (A) the Borrower and AMR, (B) the Administrative Agent and the Collateral Agent and (C) each of the followingRequired Lenders, each of which shall be originalsor as to any such Lender, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably advice satisfactory to the Administrative Agent that such Lender has executed this Amendment.
(ii) A certificate of each Loan Party signed on behalf of such Loan Party by its President or a Vice President and each its Secretary or any Assistant Secretary, dated the date of the Lenders:
Amendment No. 2 Effective Date, certifying as to (i) executed counterparts the truth of this Agreementthe representations and warranties contained in the Financing Documents as though made on and as of the date of the Amendment No. 2 Effective Date, sufficient except to the extent that any such representation or warranty relates to a specified date, in number for distribution which case such representation or warranty shall be or was true and correct as of such date, and (ii) the absence of any event occurring and continuing, or resulting from the Amendment No. 2 Effective Date, that constitutes a Default or an Event of Default.
(iii) The Borrower shall have paid (a) to the Administrative Agent, for the benefit of each Term 2 Lender and the Borrower;
(ii) executing this Amendment on or before May 15, 2008, a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) fee equal to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence 3.50% of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers aggregate principal amount of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity Term 2 Advances of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and such Lender outstanding on the other Loan Documents to which the Borrower is a party or is to be a party;
date hereof, (vb) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by for the chief financial officer benefit of Borrowereach Revolving Credit 1 Lender executing this Amendment on or before May 15, that (A) after giving 2008, a fee equal to 1.50% of the Revolving Credit 1 Commitment of each such Lender in effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, date hereof and (Bc) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date all invoiced accrued fees and expenses of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which (including the proceeds reasonable fees and expenses of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin Shearman & Sterling LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, for which invoices shall have been provided to the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) two Business Days prior to the Closing Amendment No. 2 Effective Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto).
Appears in 2 contracts
Sources: Credit Agreement (American Airlines Inc), Credit Agreement (Amr Corp)
Conditions of Effectiveness. This Agreement shall become effective ifas of the Closing Date, on or before September 18, 2018, all of subject to the following conditions precedent have been metprecedent:
(a) The Administrative Documentation Agent shall have received the following, each of which shall be originals or telecopies (followed promptly by originals), each properly executed by an Authorized Officer of the signing Loan Party, and each in form and substance satisfactory to the Documentation Agent and each of the Lenders:
(i) executed counterparts of this Agreement;
(ii) a Revolving Credit Note and/or Term Note, as applicable, executed by the Borrower in favor of each Lender, as applicable, requesting such Revolving Credit Note and/or Term Note;
(iii) counterparts of the Subsidiary Guaranty executed by each Domestic Subsidiary which is a Material Subsidiary;
(iv) counterparts of the Pledge Agreements executed by the Borrower together with the original certificates evidencing the applicable ownership interests (if applicable) along with appropriate transfer powers executed in blank; and
(v) the other Loan Documents.
(b) The Documentation Agent's ’s receipt of the following, each of which shall be originals, "pdfs" originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officeran Authorized Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Documentation Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Authorized Officers of the Borrower each Loan Party as the Administrative Documentation Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Authorized Officer thereof authorized to act as a Responsible an Authorized Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party or is to be a party;
(vii) Borrower shall have delivered the Organization Documents of each Material Subsidiary and such other documents and certifications as the Documentation Agent may reasonably require to evidence that each Loan Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the Administrative Agent a certificate, in form and substance reasonably satisfactory extent that failure to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or do so could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would not reasonably be expected to have a Material Adverse Effect Effect;
(iii) favorable opinions of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ PC, special counsel to the Loan Parties, and (D) that no consents▇▇▇▇▇▇, licenses or approvals are required in connection with de ▇▇▇▇▇, S.E.N.C.R.L./L.L.P, special Quebec counsel to the consummation by Loan Parties as to such matters concerning the Borrower of the transaction contemplated hereby Loan Parties and the executionLoan Documents as the Documentation Agent and Lenders may reasonably request;
(iv) a favorable opinion of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ MNP, delivery special U.K. counsel to the Documentation Agent;
(v) projected consolidated financial statements (including a proforma opening balance sheet, proforma operating statements and performance by proforma cash flow statements) of the Borrower and its Subsidiaries for the validity against period from the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgmentsClosing Date through December 31, bankruptcy2012, tax and intellectual property matters in its discretion), each in form and substance reasonably satisfactory thereto, made against acceptable to the Borrower under Documentation Agent and the Uniform Commercial Code Lenders;
(vi) such other documents as the Documentation Agent any Lender or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement)their counsel may have reasonably requested; and
(xivii) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement satisfactory Lien search results with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid respect to the Administrative Agent on or before the Closing Date shall have been paid Borrower and all fees required to be paid to the Lenders on or before the Closing Date shall have been paideach Guarantor.
(c) Unless waived The representations and warranties of the Borrower and each other Loan Party contained in Article V and in the other Loan Documents shall be true and correct on and as of the Closing 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 respects as of such earlier date.
(d) No Default shall exist, or would result from such proposed Borrowing or from the application of the proceeds thereof.
(e) All amounts due and payable pursuant to the Co-Lead Arranger Fee Letter shall have been received by Fifth Third Bank.
(f) The Documentation Agent and/or the Administrative Agent, the Borrower as applicable, shall have paid received payment of all amounts due and payable with respect to reasonable and documented out-of-pocket feescosts, charges fees and disbursements of one primary expenses (including, without limitation, reasonable legal fees and expenses incurred by its special counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agentand special Quebec counsel) to the extent invoiced one (1) Business Day prior to incurred through the Closing Date, plus such additional amounts Date in connection with the Documentation Agent’s due diligence investigation of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and its Subsidiaries and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality negotiation of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoLoan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Rti International Metals Inc), Credit Agreement (Rti International Metals Inc)
Conditions of Effectiveness. This Agreement All provisions of this Fourth Amendment shall become be effective ifupon satisfaction of, on or before September 18completion of, 2018, all of the following conditions precedent have been metfollowing:
(a) The Administrative Agent's receipt of the following, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed shall have received counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender Fourth Amendment executed by the Borrower, each Guarantor, and each Lender;
(iiib) a pledge agreement, the representations and warranties set forth in substantially the form Section 3 of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower this Fourth Amendment shall be true and any applicable Subsidiary, together with:correct;
(Ac) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
shall have received (ivi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, Fourth Amendment and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ixii) a certificate of the Borrower dated as of the Fourth Amendment Effective Date signed by a Responsible Officer of the Borrower certifying (A) that and attaching the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation resolutions adopted by the Borrower of the transaction contemplated hereby and authorizing the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a partythis Fourth Amendment;
(xd) the Administrative Agent shall have received for the results benefit of a Lien search (including a search each Lender who executes this Fourth Amendment, an amendment fee in immediately available funds as to judgmentsagreed in the fee letter dated July 10, bankruptcy2024, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of among the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder Administrative Agent and the termination of all commitments thereunderBofA Securities, Inc.;
(be) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to or on the Closing Fourth Amendment Effective Date;
(f) since December 31, plus such additional amounts of such fees2023, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate there shall not thereafter preclude have occurred any event or condition that has had or could reasonably be expected to have, either individually or in the aggregate, a final settling of accounts between the Borrower and the Administrative Agent).Material Adverse Effect; and
(dg) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior received, in form and substance satisfactory to the proposed Closing Date specifying Administrative Agent and its objection theretocounsel, such other documents, certificates and instruments as the Administrative Agent shall reasonably require.
Appears in 2 contracts
Sources: Credit Agreement (Carriage Services Inc), Credit Agreement
Conditions of Effectiveness. This Agreement Amendment shall become effective ifas of the first date (such date being referred to as the “Amendment No. 6 Effective Date”, on or before September 18which date is January 4, 2018, all 2017) when each of the following conditions precedent shall have been metsatisfied:
(a) The Administrative Agent shall have received counterparts of this Amendment duly executed and delivered by (A) the Borrower, (B) the MLP, (C) the Consenting Lender and (D) the Administrative Agent's receipt .
(b) The Administrative Agent shall have received, on behalf of itself and the Lenders, an opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel to the Credit Parties, dated as of the followingAmendment No. 6 Effective Date and addressed to the Administrative Agent and the Consenting Lender, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Administrative Agent and each of the Lenders:
shall have received (i) executed counterparts certificates of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
good standing (ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in such concept exists) from the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence applicable secretary of state of the completion state of all other actionsorganization of each Credit Party, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Credit Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement Amendment and the other Loan Documents to which the Borrower is a party or is to be a party;
(vii) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to dated as of the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Amendment No. 6 Effective Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that Borrower, confirming satisfaction of the conditions specified set forth in Sections 4.02(a2(e) and (bf) have been satisfied, of this Amendment.
(Bd) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation Payment by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax all reasonable fees and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid expenses due to the Administrative Agent on or before and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the Closing Date shall have been paid and all fees required to be paid “Arranger”), including, to the Lenders on extent invoiced, reimbursement or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid payment of all reasonable and documented out-of-pocket feesexpenses (including the legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) and (y) a consent fee, payable to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute Consenting Lender for its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certificationown account, in each case at least five (5) Business Days prior an amount equal to the Closing Date. Without limiting the generality 0.25% of the provisions Revolving Loan Commitments of the last paragraph Consenting Lender as of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.Amendment No. 6
Appears in 2 contracts
Sources: Revolving Credit Agreement (OCI Partners LP), Revolving Credit Agreement
Conditions of Effectiveness. This Agreement shall become effective if, on or before September 18, 2018, all The effectiveness of this Amendment is subject to the following conditions precedent have been metthat:
(a) The Administrative Agent's receipt of the following, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received counterparts of this Amendment duly executed by the results of a Lien search (including a search as to judgmentsBorrowers, bankruptcythe Required Lenders, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder Administrative Agent and the termination of all commitments thereunderIssuing Bank;
(b) All fees required the Administrative Agent shall have received counterparts of the Consent and Reaffirmation attached as Exhibit A hereto duly executed by the Loan Guarantors;
(c) the Administrative Agent shall have received an executed and effective amendment to the Prudential Note Agreement, which amendment shall be paid substantially in the form set forth on Exhibit B hereto;
(d) the Borrower Representative shall have made a Borrowing Request to the Administrative Agent on or before for a Revolving Borrowing in an amount equal to $14,645,000 for purposes of repaying the Closing Date Term Loans in an equivalent amount substantially concurrently with the effectiveness of this Amendment;
(e) the Administrative Agent shall have been paid received from the Borrowers, on behalf of each Lender signatory hereto that delivers its executed signature page to this Amendment by no later than the date and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived time specified by the Administrative Agent, an amendment fee in an amount equal to 0.10% of the Borrower sum of (i) such Lender’s Revolving Commitment immediately prior to the effectiveness of this Amendment plus (ii) the aggregate principal amount of such Lender’s Term Loans outstanding immediately prior to the effectiveness of this Amendment; and
(f) the Administrative Agent shall have paid all received payment and/or reimbursement of the Administrative Agent’s and its affiliates’ fees and expenses (including, to the extent invoiced in an invoice dated on or prior to the date hereof, reasonable and documented out-of-pocket fees, charges fees and disbursements expenses of one primary counsel to the Administrative Agent (directly to such counsel if requested by for the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower in connection with this Amendment and the Administrative Agent)other Loan Documents.
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Note Purchase and Guarantee Agreement (Chefs' Warehouse, Inc.), Credit Agreement (Chefs' Warehouse, Inc.)
Conditions of Effectiveness. This Agreement Amendment shall become effective ifas of the date first above written (the “Amendment Effective Date”) when, on or before September 18and only when, 2018the Agent shall have received counterparts of this Amendment executed by the Borrower and all of the Lenders or, as to any of the Lenders, advice satisfactory to the Agent that such Lender has executed this Amendment and the Agent shall have additionally received all of the following conditions precedent have been metdocuments, each such document (unless otherwise specified) dated the date of receipt thereof by the Agent (unless otherwise specified) and in sufficient copies for each Lender, in form and substance satisfactory to the Agent (unless otherwise specified) and in sufficient copies for each Lender:
(a) The Administrative Agent's receipt A certificate signed by a duly authorized officer of the followingBorrower, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (orAmendment Effective Date, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersstating that:
(i) executed counterparts The representations and warranties contained in Section 4.01 of this Agreementthe Credit Agreement are correct on and as of the Amendment Effective Date, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;and
(ii) No event has occurred and is continuing that constitutes a Revolving Credit Note Default.
(b) Certified copies of the resolutions of the Board of Directors of the Borrower approving this Amendment, and a Term Note of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment.
(c) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and the other documents to be delivered hereunder.
(d) A favorable opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇, S.C., counsel for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, substantially in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in Credit Agreement and as to such other matters as any Lender Party through the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Manpower Inc /Wi/), Credit Agreement (Manpower Inc /Wi/)
Conditions of Effectiveness. This Agreement shall become effective if, on or before September 18, 2018, all The effectiveness of this Amendment is subject to the satisfaction of the following conditions precedent have been metprecedent:
(a) The Administrative Agent shall have received counterparts of (i) this Amendment duly executed by the Borrower, the Required Lenders and the Administrative Agent's receipt , (ii) the Consent and Reaffirmation attached hereto duly executed by the Subsidiary Guarantors and (iii) the Pledge Agreement duly executed by the applicable Loan Parties and the Administrative Agent.
(b) The Administrative Agent shall have received a certificate of the followingSecretary or an Assistant Secretary of each Loan Party (i) certifying (w) that there have been no changes in the Certificate of Incorporation or other charter document of such Loan Party, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization, since the date of the certification thereof by such governmental entity, (x) that there have been no changes to the By-Laws or other applicable organizational document of such Loan Party since August 30, 2017, or that if there have been changes thereto since such date, attaching thereto the current version thereof as in effect on the date of such certification, (y) resolutions of the Board of Directors or other governing body of such Loan Party authorizing the execution, delivery and performance of this Amendment and each Loan Document (as amended hereby) to which it is a party, and (z) the names and true signatures of the incumbent officers of each Loan Party authorized to sign the Loan Documents to which shall be originalsit is a party, "pdfs" or telecopies and (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates the Borrower) authorized to request a Borrowing or the issuance of a Letter of Credit under the Amended Credit Agreement and (ii) attaching a Good Standing Certificate (or analogous documentation if applicable) for such Loan Party from the Secretary of State (or analogous governmental officialsentity) of the jurisdiction of its organization, a recent to the extent generally available in such jurisdiction.
(c) The Administrative Agent shall have received favorable written opinions (addressed to the Administrative Agent and the Lenders and dated as of the date before hereof) of (i) ▇▇▇▇▇ Lovells US LLP, special New York and Delaware counsel to the Closing DateLoan Parties and (ii) internal counsel to the Loan Parties as to certain corporate capacity and authorization matters and non-New York, non-federal and non-Delaware law matters, in each case in form and substance reasonably satisfactory to the Administrative Agent and each of covering such matters relating to the LendersLoan Parties, the Loan Documents, this Amendment and the transactions contemplated hereby as the Administrative Agent shall reasonably request. The Borrower hereby requests such counsels to deliver such opinions.
(d) The Administrative Agent shall have received:
(i) executed counterparts the results of this Agreement, sufficient a recent lien search in number for distribution to the jurisdiction of organization of each Loan Party and each other jurisdiction required by the Administrative Agent, each Lender and such searches shall reveal no Liens on any of the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed Equity Interests owned by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) Loan Parties except for liens discharged on or prior to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred date hereof pursuant to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions a pay-off letter or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance documentation reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(viii) the certificates as of a recent date of representing the good standing of Borrower and each Subsidiary whose equity securities are subject Equity Interests pledged pursuant to the Pledge Agreement under the laws of its jurisdiction of incorporationAgreement, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and together with an undated stock power for each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a such certificate signed executed in blank by a Responsible Officer duly authorized officer of the Borrower certifying (A) that the conditions specified pledgor thereof in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending oreach case, to the knowledge of extent required to be delivered pursuant to the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Pledge Agreement); and
(xiiii) substantially concurrent payoff in full of all outstanding obligations each document (including any Uniform Commercial Code financing statements) required by the Collateral Documents or under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to law or reasonably requested by the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid filed, registered or recorded in order to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by create in favor of the Administrative Agent, for the Borrower benefit of the Secured Parties, a perfected Lien on the Collateral described therein, which shall have paid all reasonable and documented out-of-pocket feesbe in proper form for filing, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred registration or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)recordation.
(de) The To the extent the Borrower shall have delivered qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, any Lender that has requested, in a written notice to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case Borrower at least five (5) Business Days days prior to the Closing Date. Without limiting date hereof, a Beneficial Ownership Certification in relation to the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent Borrower shall have received notice from such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender prior of its signature page to this Amendment, the proposed Closing Date specifying its objection thereto.condition set forth in this clause
Appears in 2 contracts
Sources: Credit Agreement (Papa Johns International Inc), Credit Agreement (Papa Johns International Inc)
Conditions of Effectiveness. This Third Amended and Restated Credit Agreement shall become effective if, on or before September 18, 2018, and as of the first date (the “Restatement Effective Date”) on which all of the following conditions precedent shall have been metsatisfied or waived in accordance with Section 11.01:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals, "pdfs" .pdf copies sent via electronic mail or telecopies telecopied (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible OfficerOfficer of the signing Loan Party, each dated the Closing Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Restatement Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerBorrowers;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the BorrowerBorrower in favor of each Lender requesting a Note;
(iii) a pledge agreementBorrowing Base Certificate, in substantially as of the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:Restatement Effective Date;
(iv) a certificate of each Loan Party dated as of the proposed Restatement Effective Date signed by a Responsible Officer of such Loan Party certifying that, on the Restatement Effective Date before and after giving effect to the effectiveness of this Agreement, (A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of such date, except (x) to the extent not that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date and (y) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in the Administrative Agent's possessionall respects as of such date after giving effect to such qualification, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blankand (B) no Default exists; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(ivv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party or is to be a party;
(vvi) Borrower shall have delivered to such documents and certifications as the Administrative Agent a certificatemay reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject qualified to the Pledge Agreement under the laws of engage in business in its jurisdiction of incorporation, organization or formation (or equivalent), as applicableformation;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Borrower Loan Parties and the Loan Documents as the Required Lenders Administrative Agent may reasonably request;
(viii) a favorable opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Maryland counsel to the Parent, addressed to the Administrative Agent and each Lender, as to such matters concerning the Parent and the Loan Documents to which the Parent is a party as the Administrative Agent may reasonably request;
(ix) a certificate signed by of a Responsible Officer of the Borrower certifying each Loan Party either (A) that attaching copies of all consents, licenses and approvals required in connection with the conditions specified execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in Sections 4.02(a) full force and (b) have been satisfiedeffect, or (B) stating that there has no such consents, licenses or approvals are so required;
(x) certified copies of UCC, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Loan Party (other than Parent) as debtor and that are filed in those state and county jurisdictions in which any Loan Party (other than Parent) is organized or maintains its principal place of business and such other searches, if any, that the Administrative Agent reasonably deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Liens permitted to exist pursuant to the terms hereof);
(xi) [intentionally omitted];
(xii) [intentionally omitted];
(xiii) the Administrative Agent shall have received such other agreements and documents, and evidence that all other actions, recordings and filings have been no event taken, in each case that the Administrative Agent may reasonably deem necessary or circumstance since desirable in order to create or perfect the date Liens created under the Collateral Documents (including all actions the delivery of the Audited Financial Statements certificates representing any Equity Interests in any Person that has had have been pledged pursuant to the Pledge Agreement (together with undated stock powers or could be reasonably expected to, either individually or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the aggregate, have a Material Adverse Effect, holder(s) of such Equity Interests);
(Cxiv) that there is no the absence of any action, suit, investigation or proceeding proceeding, pending oror threatened, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected purports to materially affect any of the Borrowers, the Guarantors or any of their respective Subsidiaries, or any transaction contemplated hereby, or that could have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower material adverse effect on any of the Borrowers or the Guarantors, or any of their respective Subsidiaries, or any transaction contemplated hereby and or on the execution, delivery and performance by the Borrower and the validity against the Borrower ability of any of the Loan Documents Borrowers or the Guarantors to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in perform its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower obligations 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement)Loan Documents; and
(xixv) substantially concurrent payoff in full of all outstanding obligations under a Solvency Certificate from the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;Loan Parties demonstrating that each Loan Party is Solvent.
(b) All At least five (5) Business Days prior to the Restatement Effective Date, the Administrative Agent and each Lender, as applicable, shall have received documentation and other information with respect to each of the Loan Parties which is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA Patriot Act (Title III of Pub. L. 107 56 (signed into law October 26, 2001)) and regulations implemented by the US Treasury’s Financial Crimes Enforcement Network under the Bank Secrecy Act reasonably requested by the Administrative Agent or such Lender at least ten (10) Business Days prior to the Restatement Effective Date.
(c) Any fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Restatement Effective Date shall have been paid.
(cd) Unless waived by the Administrative Agent, the Borrower Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Restatement Effective Date, plus such additional amounts of such reasonable fees, charges and disbursements as shall constitute its reasonable estimate of such reasonable fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Borrowers and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.039.03, for purposes of determining compliance with the conditions specified in this Section 4.01, 4.01 each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Restatement Effective Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Starwood Property Trust, Inc.), Credit Agreement (Starwood Property Trust, Inc.)
Conditions of Effectiveness. This The effectiveness of this Agreement shall become effective if, on or before September 18, 2018, all is subject to satisfaction of the following conditions precedent have been metprecedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals, "pdfs" originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible OfficerOfficer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the BorrowerBorrower and dated the Effective Date in favor of each Lender requesting a Note;
(iii) a pledge agreementthe Guaranty, in substantially dated as of the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement")Effective Date, duly executed by each of the Borrower Guarantors;
(iv) the Security Agreement, dated as of the Effective Date, duly executed by each Loan Party, covering all of each such Person’s equipment, gaming devices (but only to the extent permitted by applicable law and contract) and associated equipment, fixtures, furnishings, inventory, accounts, intangibles and other personal property of every kind and description, including, to the extent permitted by the terms of the financing or leasing agreements applicable thereto, all furniture, fixtures and equipment that are financed or leased, but excluding any applicable SubsidiaryGaming License and the Capital Stock of any entity, together with:
(A) acknowledgment copies of properly filed Uniform Commercial Code financing statements (Form UCC-1), dated a date reasonably near to and prior to the extent not already in Effective Date, or such other evidence of filing as may be acceptable to the Administrative Agent's possession, certificates representing naming each of the pledged equity referred Loan Parties (as appropriate) as the debtor, and the Collateral Agent, as the secured party, or other similar instruments or documents, filed under the Uniform Commercial Code of all jurisdictions as may be necessary or, in the opinion of the Administrative Agent, desirable to therein accompanied perfect the security interest of the Collateral Agent pursuant to the Security Agreement;
(B) Uniform Commercial Code termination statements necessary to release all Liens and other rights of any Person securing any existing Liens (other than Permitted Liens), together with such other Uniform Commercial Code termination statements as the Administrative Agent may reasonably request;
(C) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-3), or a similar search report certified by undated stock powers a party acceptable to the Administrative Agent, dated a date reasonably near to the Effective Date, listing all effective financing statements which name any of the Loan Parties (under their present names and any previous names) as the debtor and which are filed in the jurisdictions in which filings were made pursuant to clause (A) above, together with copies of such financing statements (none of which (other than those described in clause (A), if such Form UCC-3 or search report, as the case may be, is current enough to list such financing statements described in clause (A)) shall cover any Collateral described in the Security Agreement except as permitted by Section 7.01);
(D) all control agreements required to be executed in blankpursuant to the Security Agreement, each duly executed by each of the appropriate parties thereto; and
(BE) such all instruments (including, without limitation, the promissory note from MDDC to the Borrower) and documents required to be delivered to the Collateral Agent pursuant to the Security Agreement;
(v) the Trademark Security Agreement, dated as of the Effective Date and duly executed and delivered by the Credit Parties;
(vi) the Mortgage, dated as of the Effective Date, duly executed by MDDC, together with evidence of the completion (or satisfactory arrangements for the completion) of all other actions, recordings and filings of the Mortgage as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable effectively to create a valid, perfected Lien against the properties and the leasehold interests described therein or with respect purported to be covered thereby;
(vii) to the Pledge Agreement extent necessary to obtain an A.L.T.A. Title Policy without a survey exception, an updated surveyor’s plat of the Site prepared (and so certified) in compliance with the provisions of the applicable New Jersey survey standards by a registered land surveyor of New Jersey, and certified to the Administrative Agent and the Title Company;
(viii) an A.L.T.A. Title Policy in an amount not less than the sum of (x) the amount of the Aggregate Commitments as of the Effective Date plus (y) the aggregate principal face amount of the Senior Secured Notes, Mortgaged Property that shall (1) include such endorsements as are reasonably required by the Administrative Agent, (2) be reinsured by such reinsurance as is satisfactory to the Administrative Agent in its reasonable discretion, (3) be issued by the Title Insurer in form and substance satisfactory to the Administrative Agent, and (4) insure that:
(A) MDDC has a good, fee simple (or, as applicable, leasehold) title to the Site, free and clear of Liens (except the Permitted Liens), encumbrances (except the Permitted Encumbrances) and other exceptions to title (except the Permitted Exceptions);
(B) the Mortgage is a valid Lien on the Site, free and clear of all Liens (except the Permitted Liens), encumbrances (except the Permitted Encumbrances) and exceptions (except the Permitted Exceptions); and
(C) upon the terms and subject to the conditions set forth in the Mortgage, the Collateral Agent has the right to foreclose against the Site and that, except as otherwise permitted by the Permitted Exceptions, no forfeiture or right of reversion will exist due to covenants, restrictions or encroachments;
(ix) evidence of the following insurance coverages:
(A) comprehensive general public liability insurance in an amount reasonably satisfactory to the Administrative Agent and the Borrower covering the Borrower and MDDC;
(B) worker’s compensation insurance (or self insurance therefor) and employer’s liability insurance for the Borrower and MDDC, all in such amounts as may be required by statute;
(C) if commercially available, flood insurance if the Site is located in an area designated by the Secretary of Housing and Urban Development as a special flood hazard area; and
(D) rental or business interruption insurance in an amount not less than $500,000,000 per occurrence, subject to standard deductibles and exclusions; All policies of insurance required to be maintained by the Borrower and MDDC shall be issued by companies reasonably satisfactory to the Administrative Agent and shall have coverages and endorsements (including, without limitation, waivers of subrogation and waivers of breach of warranty) and be written for such amount as the Administrative Agent may deem reasonably necessary require. All policies of insurance required to be maintained by Borrower and MDDC must name the Administrative Agent as mortgagee and additional insured or reasonably desirable loss payee, must insure the interest of the Administrative Agent in order the property as mortgagee and must provide that no cancellation or material modification of the policies will be made without thirty days’ prior written notice to perfect Administrative Agent. Certificates for all such policies must be delivered to the Liens created therebyAdministrative Agent and approved by the Administrative Agent (which approval shall not be unreasonably withheld);
(ivx) the Hazardous Materials Indemnity, dated as of the Effective Date, duly executed by the Credit Parties;
(xi) an appraisal of the properties described in the Mortgage complying with the requirements of the Federal Financial Institutions Reform, Recovery and Enforcement Act of 1989;
(xii) a Notice of Special Flood Hazards and Availability of Federal Disaster Relief Assistance duly executed by the Credit Parties which acknowledges that the Site is in an area that has been identified by the director of the Federal Emergency Management Agency as a special flood hazard area and acknowledging the flood insurance requirements applicable in connection therewith;
(xiii) the Intercreditor Agreement, dated as of the Effective Date, duly executed by the Administrative Agent, the Collateral Agent and U.S. Bank National Association, in its capacity as the trustee for the holders of the Senior Secured Notes;
(xiv) the Borrower shall have received net cash proceeds from the sale of its Senior Secured Notes in an aggregate amount not less than $650,000,000;
(xv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party or is to be a party;
(vxvi) Borrower shall have delivered to such documents and certifications as the Administrative Agent a certificatemay reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in form good standing and substance reasonably satisfactory qualified to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect engage in business in each jurisdiction where such Person is qualified to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIIIdo business;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viiixvii) a favorable opinion of Sidley Austin LLP▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.A., counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to customary the matters set forth in Exhibit G and such other matters concerning the Borrower Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(ixxviii) a certificate of the General Counsel of a Credit Party or the General Counsel of ▇▇▇▇ stating that each Loan Party has received all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party and that such consents, licenses and approvals are in full force and effect;
(xix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedsatisfied and that since March 31, (B) that 2010, there has been no event material adverse change in the business, operations, debt service capacity, properties, assets, nature of business, liabilities (including environmental liabilities) or circumstance since the date prospects of the Audited Financial Statements that has had or could be reasonably expected toCredit Parties and their Subsidiaries, either individually or in the aggregate, have taken as a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a partywhole;
(xxx) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each Existing Credit Agreement has been, or concurrently with the Borrower Effective Date is being, terminated and all Liens securing obligations thereunder have been, or concurrently with the Effective Date are not subject to any Liens (except for Liens permitted under this Agreement)being, released; and
(xixxi) substantially concurrent payoff in full of all outstanding obligations under such other assurances, certificates, documents, consents or opinions as the Existing Credit Agreement with Administrative Agent, the proceeds of L/C Issuer, the initial Loans funded hereunder and Swing Line Lender or the termination of all commitments thereunder;Required Lenders reasonably may require.
(b) All Any fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Effective Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower The Effective Date shall have paid all reasonable and documented out-of-pocket feesoccurred on or before August 16, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)2010.
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Marina District Development Company, LLC), Credit Agreement (Boyd Gaming Corp)
Conditions of Effectiveness. This The effectiveness of this Agreement shall become effective if, on or before September 18, 2018, all is subject to satisfaction of the following conditions precedent have been metprecedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals, "pdfs" originals or telecopies electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officerduly authorized officer of the applicable signing Loan Party, each dated as of the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this Agreement, sufficient in number for distribution to Agreement executed by the Administrative Agent, each Lender and the Borrowereach Loan Party;
(ii) a Revolving Credit each Note and a Term Note for each requesting Lender executed by the BorrowerBorrowers in favor of each Lender requesting a Note or Notes;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly Security Agreement executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created therebyeach Loan Party;
(iv) the Term Loan Intercreditor Agreement executed by the Borrowers and the Term Loan Agent;
(v) the Fee Letter executed by the Company and the Administrative Agent;
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers duly authorized officers of the Borrower each Loan Party and each Restricted Subsidiary party to a Loan Document, in each case, as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and officer of each Loan Party or Restricted Subsidiary executing the other Loan Documents to which the Borrower each Loan Party or Restricted Subsidiary is a party or is to be a party;
(vvii) Borrower shall such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so would not reasonably be expected to have delivered a Material Adverse Effect;
(viii) the executed opinion of Hunton & ▇▇▇▇▇▇▇▇ LLP, counsel to the Company and special New York counsel to the other Loan Parties, addressed to the Administrative Agent, the Collateral Agent a certificateand each Lender, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably requestCollateral Agent;
(ix) (i) unaudited consolidated financial statements for the quarter ending September 30, 2016 prepared in accordance with GAAP and (ii) financial projections (including the assumption on which such projections are based) for fiscal years 2017 through 2021;
(x) a certificate signed by a Responsible Officer of the Borrower Company certifying (A) that the conditions specified in Sections 4.01(c) and Sections 4.02(a) and (b) have been satisfied, and (B) that there has been no event or circumstance not occurred since the date of the Audited Financial Statements that has had or could be reasonably expected toDecember 31, either individually or in the aggregate2016, have a any Material Adverse Effect;
(xi) a solvency certificate from the chief financial officer of the Company in the form of Exhibit L, which demonstrates that the Company and its Restricted Subsidiaries on a consolidated basis, are, and after giving effect to the Transactions and the other transactions contemplated hereby, will be, Solvent
(Cxii) copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment Lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, Lien notices or comparable documents that there name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Material Real Property of any Loan Party is no located and the state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such other searches that the Administrative Agent deems reasonably necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Security Agreements (other than Permitted Liens);
(xiii) the Collateral Questionnaire, executed by each Loan Party; and
(xiv) a Borrowing Base Certificate covering the Borrowing Base as of the Closing Date, with customary supporting documentation.
(b) (i) Any fees required to be paid on or before the Closing Date to the Administrative Agent, the Arrangers or the Lenders pursuant to the Fee Letter shall have been paid and (ii) any costs and expenses required to be paid on or before the Closing Date to the Administrative Agent, the Arrangers or the Lenders to the extent invoices have been received by the Company at least two Business Days prior to the Closing Date (or such later date as reasonably agreed by the Company) shall have been paid.
(c) The Company and its Restricted Subsidiaries shall have complied in all material respects with all state and federal regulations regarding financial assurance requirements (including but not limited to reclamation bonding requirements).
(d) The Administrative Agent shall have received a certificate from the applicable Loan Party’s insurance broker or other evidence satisfactory to it that all insurance required to be maintained pursuant to Section 6.07 is in full force and effect, together with endorsements naming Collateral Agent, for the benefit of Secured Parties, as additional insured and lender’s loss payee thereunder to the extent required under Section 6.07.
(e) In order to create in favor of Collateral Agent, for the benefit of Secured Parties, a valid, perfected First Priority security interest in the Collateral (subject to the limitations set forth in the Collateral Documents), each Loan Party shall have delivered to Collateral Agent:
(i) executed counterparts of the Security Agreement;
(ii) evidence reasonably satisfactory to Administrative Agent of the compliance by each Loan Party of their obligations under the Security Agreement and the other Collateral Documents (including their obligations to execute or authorize, as applicable, and deliver UCC financing statements (including, without limitation, as-extracted financing statements), originals of securities, instruments and chattel paper and any agreements governing deposit and/or securities accounts as provided therein);
(iii) fully executed IP Security Agreements, in proper form for filing or recording in the United States Patent and Trademark Office and the United States Copyright Office, as applicable, memorializing and recording the encumbrance of the Intellectual Property listed in Schedule 6 to the Security Agreement; and
(iv) evidence that each Loan Party shall have taken or caused to be taken any other action, executed and delivered or caused to be executed and delivered any other agreement, document and instrument (including any other intercompany notes evidencing Indebtedness permitted to be incurred pursuant to Section 7.03) and made or caused to be made any other filing and recording (other than as set forth herein) reasonably required by the Administrative Agent.
(f) There shall not exist any action, suit, investigation investigation, litigation, proceeding or proceeding hearing, pending or, to the knowledge of the Borrower, or threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with impairs the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower ability of the Loan Documents Parties to which it is consummate the Transactions and no preliminary or permanent injunction or order by a party;state or federal court shall have been entered, in each case that would be material and adverse to the Arrangers, the Agents or the Lenders. All Governmental Authorities and Persons shall have approved or consented to the transactions contemplated hereby, to the extent required, and such approvals shall be in full force and effect.
(xg) The Arrangers and the Administrative Agent Agents shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day at least three business days prior to the Closing Date, plus such additional amounts of such fees, charges Date all documentation and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred other information required by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Arrangers’ and the Administrative Agent).
(d) The Borrower shall have delivered Agents’ regulatory authorities with respect to the Administrative AgentCompany and the other Loan Parties under applicable “know your customer” and anti-money laundering rules and regulations, and any Lender requesting including without limitation the samePATRIOT Act, a Beneficial Ownership Certification, in each case that has been requested by the Arrangers or the Agents at least five (5) ten Business Days prior to the Closing Date. Without limiting .
(h) On the generality Closing Date, neither the Company nor any of its Subsidiaries shall have any material Indebtedness other than Indebtedness permitted pursuant to Section 7.03.
(i) Since December 16, 2016, no Material Adverse Effect shall have occurred.
(j) The Administrative Agent shall have received any promissory note required to be pledged to the Administrative Agent pursuant to the Security Agreement endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof.
(k) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document shall be true and correct in all material respects (or, if such representation or warranty is subject to a materiality or Material Adverse Effect qualification, in all respects) on and as of the provisions date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality or by a reference to a Material Adverse Effect in the text thereof.
(l) No Default or Event of Default shall have occurred and be continuing, or would result, from any Credit Extension or from the application of the last paragraph of Section 10.03, for proceeds thereof on the Closing Date. For purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder under any Loan Document to be consented to or approved by or acceptable or satisfactory to a Lender such Lender, unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Asset Based Revolving Credit Agreement (Contura Energy, Inc.), Asset Based Revolving Credit Agreement (Contura Energy, Inc.)
Conditions of Effectiveness. This Agreement Amendment shall become effective if, on or before September 18, 2018, all as of the following conditions precedent have been met:
(a) The Administrative Agent's receipt of the following, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agentfirst above written when, and certified as accurate by the chief financial officer of Borroweronly when, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received counterparts of this Amendment executed by Holdings and the results Required Lenders or, as to any of a Lien search the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment; and Section 1 of this Amendment shall become effective when and only when the Administrative Agent shall have received (a) the fees specified in Section 2(a) hereof, and payment of all other accrued fees and expenses of the Administrative Agent (including a search as the reasonable accrued fees and expenses of counsel to judgmentsthe Administrative Agent invoiced on or prior to the date hereof) and (b) all of the following documents, bankruptcy, tax and intellectual property matters in its discretioneach such document dated the date of receipt thereof by the Administrative Agent (unless otherwise specified), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent: Counterparts of the Consent appended hereto (the "Consent"), executed by each of the Loan Parties (other than Holdings); Certified copies of (A) the resolutions of the Board of Directors of (1) Holdings approving this Amendment and the matters contemplated hereby and (2) each other Loan Party evidencing approval of the Consent and (B) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and all other matters contemplated hereby; A certificate signed by a duly authorized officer of Holdings stating that: (A) the representations and warranties contained in Section 4 hereof and in the Loan Documents are true and correct on and as of the date of such certificate as though made on and as of such date other than any such representations or warranties that, by their terms, refer to a date other than the date of such certificate, and any Lender requesting the same, (B) no event has occurred and is continuing that constitutes a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoDefault.
Appears in 2 contracts
Sources: Credit Agreement (Alpharma Inc), Credit Agreement (Alpharma Inc)
Conditions of Effectiveness. This Agreement Amendment shall become effective ifas of the date first above written (the “Amendment Effective Date”) when, on or before September 18and only when, 2018the Paying Agent shall have received counterparts of this Amendment executed by the Borrower and all of the Lenders or, as to any of the Lenders, advice satisfactory to the Paying Agent that such Lender has executed this Amendment and the Paying Agent shall have additionally received all of the following conditions precedent have been metdocuments, each such document (unless otherwise specified) dated the date of receipt thereof by the Paying Agent (unless otherwise specified) and in sufficient copies for each Lender, in form and substance satisfactory to the Paying Agent (unless otherwise specified) and in sufficient copies for each Lender:
(a) The Administrative Agent's receipt A certificate signed by a duly authorized officer of the followingBorrower, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (orAmendment Effective Date, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersstating that:
(i) executed counterparts The representations and warranties contained in Section 4.01 of this the Credit Agreement, sufficient in number for distribution to as amended hereby, are correct on and as of the Administrative Agent, each Lender and the Borrower;Amendment Effective Date; and
(ii) No event has occurred and is continuing that constitutes a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunderDefault;
(b) All fees required to be paid to The Consent attached hereto, duly executed by each Guarantor existing on the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.Amendment Effective Date;
(c) Unless waived by Certified copies of the Administrative Agent, resolutions of the Board of Directors of the Borrower shall have paid approving this Amendment and of all reasonable documents evidencing other necessary corporate action and documented out-of-pocket feesgovernmental approvals, charges and disbursements of one primary counsel if any, with respect to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower this Amendment and the Administrative Agent).other Loan Documents;
(d) The A certificate of the Secretary or an Assistant Secretary of the Borrower shall have certifying the names and true signatures of the officers of the Borrower authorized to sign this Amendment and the other documents to be delivered hereunder or thereunder; and
(e) A favorable opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice President, Secretary and General Counsel for the Borrower, substantially in the form of Exhibit C to the Administrative Agent, Credit Agreement and as to such other matters as any Lender requesting through the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Paying Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretomay reasonably request.
Appears in 2 contracts
Sources: Five Year Credit Agreement (Kroger Co), Five Year Credit Agreement (Kroger Co)
Conditions of Effectiveness. This Articles II and III of this Agreement shall become effective if, on or before September 18, 2018, as of the date (the "Effective Date") when and only when all of the following conditions precedent set forth in this Article IV have been met:satisfied.
(a) The Administrative Agent's receipt of Agent shall have received on or before the Effective Date the following, each of which shall be originals, "pdfs" or telecopies dated such day (followed promptly by originals) unless otherwise specified), each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent Debt Coordinators (unless otherwise specified) and in sufficient copies for each of the LendersLender Party:
(i) executed counterparts A counterpart of this Agreement, sufficient in number for distribution to the Administrative Agent, Agreement executed by or on behalf of each Loan Party and each Lender and Party or the Borrower;requisite number of Lender Parties under each of the Covered Facilities constituting "required lenders" thereunder (or such similar term as denotes the necessary number of lenders or other financial institutions owed or holding the required percentage of loans or other credit extensions outstanding or commitments therefor as may be necessary to amend, modify, restate and, in certain cases, extend, any such Credit Facility as herein stated), as determined by the Debt Coordinators (with notice thereof to Group).
(ii) a Revolving Credit Note The Amendment, Modification, Restatement and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, General Provisions Agreement in substantially the form of Exhibit E A hereto (together with each other pledge agreement supplement delivered in connection therewithas the same may be amended, in each case as amendedsupplemented or otherwise modified from time to time, the "Pledge Facility Agreement"), duly executed by each Loan Party, the Borrower and any applicable SubsidiaryDebt Coordinators, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect and the Liens created thereby;Collateral Trustee.
(iviii) such certificates of resolutions or The valuation report for all trademarks, copyrights, patents, licenses and other action, incumbency certificates and/or other certificates of Responsible Officers general intangibles of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;Parties.
(vb) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after Before giving effect to the financing hereunder and each transactions contemplated by the Loan to be advanced on the Closing DateDocuments, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;there shall have occurred no Material Adverse Change.
(vic) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is There shall exist no action, suit, investigation investigation, litigation or proceeding pending or, to the knowledge of the Borrower, or threatened in writing in any court or before any arbitrator or Governmental Authority governmental instrumentality that would (i) could reasonably be expected to have result in a Material Adverse Effect and Change or (Dii) that no consentsrestrains, licenses prevents or approvals are required in connection with imposes or can reasonably be expected to impose materially adverse conditions upon the consummation by Covered Facilities or the Borrower of the transaction transactions contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)thereby.
(d) The Borrower Nothing contained in any public disclosure made by Group or any of its Subsidiaries after July 19, 2000, or in any information disclosed to the Arrangers or the Lender Parties by Group or any of its Subsidiaries after such date, shall lead any Arranger or any Lender Party to determine that, and none of the Arrangers or the Lender Parties shall have delivered otherwise become aware of any fact or condition not disclosed to them prior to such date which shall lead any Arranger or Lender Party to determine that the condition (financial or otherwise), operations, performance, properties or prospects of Group and its Subsidiaries, taken as a whole, are different in any material adverse respect from that disclosed in writing to such Arranger or Lender Party by or on behalf of Group prior to such date, or derived by such Arranger or Lender Party from the public filings of Group or any of its Subsidiaries prior to such date.
(e) All governmental and third party consents and approvals necessary in connection with the transactions contemplated by the Loan Documents shall have been obtained (without the imposition of any conditions that are not acceptable to the Administrative Agent, Lender Parties) and any no law or regulation shall be applicable in the judgment of the Lender requesting the same, a Beneficial Ownership CertificationParties, in each case at least five that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated by the Loan Documents or the rights of the Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by any of them.
(5f) Group shall have paid (i) the fees specified in Sections 7.2 and 7.3 of the Facility Agreement, and all accrued fees of the Agents and the Lender Parties, in each case to the Administrative Agent for deposit in the Administrative Agent's Account, and the Administrative Agent will distribute such funds to the Lender Parties not later than the next succeeding Business Days Day thereafter and (ii) all accrued expenses of the Agents and the Lender Parties (including the reasonable accrued fees and expenses of counsel to the Debt Coordinators and the Lender Parties, and all local counsel and foreign jurisdiction counsel to the Debt Coordinators) which have been invoiced prior to the Closing Effective Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Intercreditor Agreement (Warnaco Group Inc /De/), Intercreditor Agreement (Warnaco Group Inc /De/)
Conditions of Effectiveness. This Agreement Amendment shall become effective if, as of the date (the “Effective Date”) on or before September 18, 2018, all of which the following conditions precedent shall have been met:satisfied (or waived):
(a) The the Administrative Agent's ’s receipt of the following, each of which shall be originals, "pdfs" originals or telecopies facsimiles (followed promptly by originals) unless otherwise specifiedspecified in writing by the Administrative Agent to the Borrower, each properly executed by a Responsible Officeran Authorized Officer of the applicable signing Loan Party, each dated as of the Closing Effective Date (or, except as set forth in the case of certificates of governmental officials, a recent date before the Closing Dateclauses (iii)(B) and (v) below), each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed i. counterparts of this AgreementAmendment duly executed by Holdings, sufficient in number for distribution to the Borrower, each Subsidiary Guarantor and the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form . counterparts of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), this Amendment duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby2016 Incremental Term Facility Lenders identified on Schedule 1 hereto;
(iv) such certificates iii. a certificate of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity an Authorized Officer of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificateParty that, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to this Amendment and the financing hereunder transactions contemplated hereby, (A) certifies and each attaches the resolutions adopted by the board of directors (or equivalent governing body) of the applicable Loan Party approving or consenting to be advanced on the Closing Date, Borrower 2016 Incremental Term Loan Commitments and each Subsidiary thereof is each Solvent, the 2016 Incremental Term Loans and (B) attached thereto are calculations evidencing compliance as of June 30attaching certificates, 2018 with dated on or about the covenants contained in Article VIII;
(vi) certificates as of a recent date Effective Date, of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement Loan Party under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable, and to the extent reasonably requested by the Administrative Agent, each other jurisdiction where such Loan Party is qualified to do business;
iv. a certificate of an Authorized Officer of the Borrower stating that, after giving effect to this Amendment and the transactions contemplated hereby, (viiA) the representations and warranties made by each Loan Party set forth in Article III of the Credit Agreement and in the other Loan Documents are true and correct in all material respects (or if qualified by materiality or reference to Material Adverse Effect, in all respects) with the same effect as if then made (unless expressly stated to relate to an earlier date, in which case such representations and warranties are true and correct in all material respects as of such earlier date) and (B) no Default has occurred and is continuing or will result from this Amendment or the transactions contemplated hereby; and
v. a written notice from an Authorized Officer of the Borrower (together with any other information and documentation reasonably requested by Borrower designating the Administrative Agent) stating that the Acquisition is a deposit account acceptable to “Limited Conditionality Acquisition”.
(b) all fees and expenses of the Administrative Agent into which the proceeds of Loans that are required to be disbursed;paid hereunder or pursuant to the Credit Agreement shall have been paid in full in cash or will be paid in full in cash concurrently with the effectiveness of this Amendment; and
(viiic) The Administrative Agent shall have received a favorable opinion legal opinion, dated as of Sidley Austin the Effective Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower 2016 Incremental Term Facility Lenders and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Consolidated Communications Holdings, Inc.)
Conditions of Effectiveness. This Agreement shall not become effective ifeffective, on and no Fronting Bank or before September 18Lender shall have an obligation to make its initial Credit Extension hereunder, 2018, all until satisfaction or waiver of the following conditions precedent have been metprecedent:
(a) The Administrative Agent's receipt of the following, each of which shall be originals, "pdfs" originals or telecopies facsimiles or sent by electronic mail (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower as of the BorrowerEffective Date;
(ii) a Revolving Credit Note Security Agreement and a Term Note Control Agreement for each requesting Lender Borrower executed by the Borrowerparties thereto with such number of counterparts as may be requested by the Administrative Agent;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly Note executed by the each Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence favor of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created therebyeach Lender requesting a Note;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers the Secretary or Assistant Secretary of the each Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the such Borrower is a party or is to be a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower shall have delivered is duly organized or formed, validly existing, in good standing (to the extent such concept is applicable) and qualified to engage in business in the jurisdiction in which it is organized;
(vi) a favorable opinion from each of (A) Skadden, Arps, Slate, Meager & ▇▇▇▇ LLP, New York counsel to the Borrowers, and (B) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, Bermuda counsel to the Borrowers, in each case addressed to the Administrative Agent a certificateAgent, the Fronting Bank and each Lender and in form and substance reasonably satisfactory acceptable to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice a certificate of a Responsible Officer of each Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by each Borrower designating and the validity against such Borrower of the Loan Documents to which it is a deposit account acceptable to Administrative Agent into which the proceeds of Loans party, and confirming that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are to be disbursedso required;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ixA) a certificate signed by a Responsible Officer of the each Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, satisfied and (B) a certificate signed by a Responsible Officer of Alterra Capital certifying that (1) since December 31, 2010 there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or not occurred a material adverse change in the aggregatebusiness assets, have properties, results of operations or condition (financial or otherwise) of Alterra Capital and its Subsidiaries, taken as a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect whole; and (D2) that no consents, licenses the current Financial Strength Rating of Alterra Bermuda;
(ix) the Financial Strength Rating of Alterra Bermuda shall be A- or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a partybetter;
(x) a Borrowing Base Certificate for each Borrower executed by a Responsible Officer of such Borrower calculated as of the most recent Business Day in accordance with the requirements hereof and demonstrating compliance with Section 6.10 with respect to such Borrower;
(xi) the Existing Credit Agreements shall have been terminated and all loans, interest, fees and other costs and expenses due and owing through the Effective Date shall have been paid in full;
(xii) a Master Participation Agreement executed by all of the Lenders, the lenders under the Existing Credit Agreements and the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against to the Borrower Administrative Agent;
(xiii) satisfactory evidence that there are no Liens on the Collateral Accounts and no financing statements or other similar filings with respect thereto other than those 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Existing Credit Agreement and Liens permitted under this AgreementSections 7.06(b) and (n);
(xiv) a letter from the Process Agent agreeing to the terms of Section 11.14(d); and
(xixv) substantially concurrent payoff in full of all outstanding obligations under such other assurances, certificates, documents, consents or opinions as the Existing Credit Agreement with Administrative Agent, the proceeds of L/C Administrator, the initial Loans funded hereunder and Lender or the termination of all commitments thereunder;Required Lenders may reasonably require.
(b) All Any fees required to be paid to the Administrative Agent on or before the Closing Effective Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paidextent invoiced at least one (1) Business Day prior thereto.
(c) Unless waived by the Administrative Agent, the Borrower Alterra Capital and Alterra Bermuda shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least one (1) Business Day day prior to or on the Closing Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Alterra Capital, Alterra Bermuda and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.039.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Effective Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Markel Corp)
Conditions of Effectiveness. This Agreement Amendment shall become effective as of the first date (the “Amendment Effective Date”) on which, and only if, on or before September 18, 2018, all each of the following conditions precedent shall have been metsatisfied:
(a) The Administrative Agent's receipt of the followingAgent shall have received, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(ix) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender Amendment executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order and those Lenders comprising Required Lenders or, as to perfect the Liens created thereby;
(iv) any of such certificates of resolutions or other actionLenders, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered advice satisfactory to the Administrative Agent a certificatethat such Lender has executed this Amendment, and (y) the consent attached hereto (the “Consent”) executed by each of the Guarantors.
(b) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer counterparts of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject an amendment to the Pledge Agreement under executed by each of the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;parties thereto.
(viic) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the The Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion)received, in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly a) a certificate of each Loan Party and of each general partner or managing member thereof certifying as to such counsel if requested the matters required by the Administrative Agentcertificate described in Section 3.01(a)(viii) of the Existing Credit Agreement, in each case as of the Amendment Effective Date, (b) a certificate of the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan Party, or of the general partner or managing member of such Loan Party, authorized to sign this Amendment and each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder and (c) certified copies of the resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by this Amendment and each Loan Document contemplated hereby to which it or such Loan Party is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the extent invoiced one (1) Business Day prior transactions under the Loan Documents and each Loan Document to the Closing Date, plus which it or such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred Loan Party is or is to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)party.
(d) The Borrower Administrative Agent shall have delivered received, in form and substance satisfactory to the Administrative Agent, (i) an amendment of the Revolving Credit Agreement and any Lender requesting (ii) an amendment to the same, a Beneficial Ownership Certification7 Year Term Loan Agreement, in each case at least five modifying the underlying agreement to account for the terms herein and making certain other corresponding modifications.
(5e) Business Days prior to (i) the Closing Date. Without limiting the generality fees provided for in Section 10 and (ii) all of the provisions reasonable out-of-pocket expenses of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretobeen paid in full.
Appears in 1 contract
Conditions of Effectiveness. This Agreement shall become effective if, on The effectiveness of this Amendment is subject to satisfaction (or before September 18, 2018, all waiver in accordance with Section 11.01 of the Credit Agreement) of the following conditions precedent have been met:on or before June 6, 2018 (the “Amendment Effective Date”):
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals, "pdfs" originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible OfficerOfficer of the signing Loan Party, each dated the Closing Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative AgentAmendment executed by each Borrower, each Lender and the BorrowerAdministrative Agent;
(ii) Notes, if requested by a Revolving Credit Note and a Term Note for each requesting Lender at least three Business Days prior to the Amendment Effective Date, executed by the Borrowereach Borrower in favor of such Lender;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement Amendment and the other Loan Documents to which the Borrower such Loan Party is a party or is to be a party;
(viv) Borrower shall have delivered to such documents and certifications as the Administrative Agent a certificatemay reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Loan Parties is validly existing, in form good standing and substance reasonably satisfactory qualified to engage in business in the Administrative Agent, and certified as accurate by the chief financial officer jurisdiction of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIIIits organization;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viiiv) a favorable opinion of Sidley Austin (A) Ropes & ▇▇▇▇ LLP, New York counsel to the BorrowerLoan Parties, (B) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, special Canadian counsel to the Company, ▇▇▇▇ and LCHI and (C) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, special Nevada counsel to LUSA, each addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Borrower Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(ixvi) a certificate signed by a Responsible Officer of the Borrower Company certifying that (A) that the conditions specified representations and warranties of (i) each Borrower contained in Sections 4.02(aArticle V of the Credit Agreement (as amended hereby) and (bii) have been satisfiedeach Loan Party contained in each other Loan Document are true and correct in all material respects on and as of the Amendment Effective 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 as of such earlier date (provided that any representation or warranty qualified by materiality or material adverse effect shall be true and correct in all respects), (B) that no Default exists and (C) there has been no event or circumstance since the date of the Audited Financial Statements January 31, 2018 that has had or could be reasonably expected toto have, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xivii) substantially concurrent payoff such other information as has been reasonably requested in full of all outstanding obligations writing at least 10 days prior to the Amendment Effective Date by the Administrative Agent or the Lenders that they reasonably determine is required by regulatory authorities under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder applicable “know your customer” and the termination of all commitments thereunder;anti-money laundering rules and regulations.
(b) All fees required to be paid At least three days prior to the Administrative Agent on or before Amendment Effective Date, any Loan Party that qualifies as a “legal entity customer” under the Closing Date Beneficial Ownership Regulation shall have been paid and all fees required deliver, to be paid each Lender that so requests, a Beneficial Ownership Certification in relation to the Lenders on or before the Closing Date shall have been paidsuch Loan Party.
(c) Unless The Company shall have paid all fees and, unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket expenses (including the reasonable and documented fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent)) to the extent earned, due and owing or otherwise payable or reimbursable pursuant to Section 11.04(a) of the Credit Agreement in connection with the preparation, negotiation, execution and delivery of this Amendment that are invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) three Business Days prior to or on the Closing Amendment Effective Date. Without limiting the generality of the provisions of the last paragraph of Section 10.039.03 of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 4.012, each Lender that has signed this Agreement Amendment shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or reasonably satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Amendment Effective Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Agreement shall become effective ifas of the date first above written when, and only when, on or before September 18July 31, 20182002, the Agent shall have received counterparts of this Agreement executed by the Borrowers and the Majority Banks or, as to any of the Banks, advice satisfactory to the Agent that such Bank has executed this Agreement. This Agreement is subject to the provisions of Section 8.01 of the Credit Agreement. Sections 1 through 3 hereof shall become effective when, and only when, on or before July 31, 2002, the Agent shall have additionally received all of the following conditions precedent have been metdocuments, each such document (unless otherwise specified) dated the date of receipt thereof by the Agent (unless otherwise specified) and in sufficient copies for each Bank, in form and substance satisfactory to the Agent and the Majority Banks (unless otherwise specified) and in sufficient copies for each Bank:
(a) The Administrative Agent's receipt Certified copies of (i) the resolutions of the followingBoard of Directors, each or the Executive Committee thereof, of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersBorrowers approving this Agreement and the matters contemplated hereby and (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement and the matters contemplated hereby.
(b) A certificate of the Secretary or an Assistant Secretary of each Borrower certifying (i) the names and true signatures of the officers of such Borrower authorized to sign this Agreement and the other documents to be delivered hereunder and thereunder and, (ii) that attached thereto is a complete and correct copy of the Certificate of Incorporation and Bylaws of such Borrower together with any amendments thereto.
(c) Favorable opinions of ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇, General Counsel of TWC, and Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Borrowers, substantially in the Form of Exhibit A hereto and as to such other matters as the Agent may reasonably require.
(d) A certificate signed by a duly authorized officer of each Borrower stating that:
(i) executed counterparts the representations and warranties contained in Section 5 are correct on and as of this Agreementthe date of such certificate as though made on and as of such date other than any such representations or warranties that, sufficient in number for distribution by their terms, refer to a date other than the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form date of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blanksuch certificate; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (Aii) after giving effect to the financing hereunder Consent and each Loan to be advanced on Fourth Amendment and the Closing Datetransactions contemplated therein, Borrower no event has occurred and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;continuing that constitutes a Default.
(vie) certificates as of a recent date A duly executed and fully effective L/C Agreement and an amendment to each of the good standing Progeny Facility documents, other than those automatically amended by virtue of Borrower and this Agreement, each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since dated the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(cf) Unless waived by The L/C Collateral Documents (other than the Administrative Agent, Mortgages and Additional Mortgages; each as defined in the Borrower shall have paid L/C Agreement) and all reasonable and documented out-of-pocket fees, charges and disbursements documents required for perfection of one primary counsel to the Administrative Agent (directly Liens granted pursuant to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)L/C Collateral Documents.
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Multi Year Credit Agreement (Williams Companies Inc)
Conditions of Effectiveness. This Agreement shall not become effective ifeffective, on and no Fronting Bank or before September 18Lender shall have an obligation to make its initial Credit Extension hereunder, 2018, all until satisfaction of the following conditions precedent have been metprecedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals, "pdfs" originals or telecopies facsimiles or sent by electronic mail (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible OfficerOfficer of the signing Borrower, each dated the Closing Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower as of the BorrowerAmendment Effective Date;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrowereach Borrower in favor of each Lender requesting a Note;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers Secretary or Assistant Secretary of the each Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the such Borrower is a party or is to be a party;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower is duly organized or formed, the capitalization of each Borrower and that each Borrower is validly existing, in good standing and qualified to engage in business in each jurisdiction where the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(v) Borrower shall have delivered a favorable opinion from each of (A) Skadden, Arps, Slate, Meager & ▇▇▇▇ LLP, New York counsel to the Borrowers, and (B) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, Bermuda counsel to the Borrowers, in each case addressed to the Administrative Agent a certificateAgent, the Fronting Bank and each Lender and in form and substance reasonably satisfactory acceptable to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as a certificate of a recent date Responsible Officer of the good standing Parent either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by each Borrower and each Subsidiary whose equity securities the validity against such Borrower of the Loan Documents to which it is a party, and confirming that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicableso required;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower Parent certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that since December 31, 2006 there has been no event not occurred a material adverse change in the business, assets, liabilities (actual or circumstance since the date contingent), operations or condition (financial or otherwise) of the Audited Financial Statements that has had Parent and its Subsidiaries taken as a whole, Harbor Point Re individually, or could be reasonably expected to, either individually or in the aggregate, have Harbor Point Re and its Subsidiaries taken as a Material Adverse Effect, whole; and (C) that there is no action, suit, investigation the current Financial Strength Rating of Harbor Point Re and each other Material Insurance Subsidiary;
(viii) the Financial Strength Rating of Harbor Point Re shall be A or proceeding pending or, better;
(ix) a Compliance Certificate executed by a Responsible Officer of the Parent certifying as to the knowledge of the Borrower, threatened financial covenants in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect Section 7.09(a) and (Db) that no consentsas of March 31, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;2007.
(x) a letter from the Administrative Process Agent shall have received agreeing to the results terms of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this AgreementSection 11.14(d); and
(xi) substantially concurrent payoff in full of all outstanding obligations under such other assurances, certificates, documents, consents or opinions as the Existing Credit Agreement with Administrative Agent, the proceeds of L/C Administrator, the initial Loans funded hereunder and Lender or the termination of all commitments thereunder;Required Lenders may reasonably require.
(b) All Any fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Amendment Effective Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower Parent and Harbor Point Re shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least one (1) Business Day day prior to or on the Closing Amendment Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Parent, Harbor Point Re and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.039.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Amendment Effective Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This (a) The Agreement shall become effective if, on or before September 18, 2018, as of the Amendment No. Five Effective Date upon the satisfaction of all of the following conditions precedent have been met:
(a) The Administrative Agent's receipt of the following, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersconditions:
(i) Borrowers shall have delivered to Administrative Agent an original (or executed counterparts faxed or electronic copy) of this Agreement, sufficient in number for distribution to duly executed by each of the Administrative Agent, each Lender and the BorrowerLoan Parties;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender Parent shall have delivered to Administrative Agent an original (or executed faxed or electronic copy) of the Ratification attached to this Amendment, duly executed by the BorrowerP▇▇▇▇▇;
(iii) Borrowers shall have established the Pledged Account at Truist Bank and funded such account with a pledge agreement, cash deposit equal to the outstanding principal balance of the GARJA Loan in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered such principal amount as provided in connection therewith, in each case as amended, the "Pledge Agreement"Section 2(a), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) an Account Escrow Agreement shall be in effect in form and content acceptable to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred Agent with regard to therein accompanied by undated stock powers executed in blanksuch Pledged Account; and
(Biv) such evidence the receipt by Administrative Agent of the completion payment, in immediately available funds, of all other actionsreasonable out-of-pocket fees, recordings costs, charges and filings of or with respect to the Pledge Agreement that the expenses incurred by Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the preparation, execution and delivery of this Agreement or any of the transactions arising hereunder or otherwise related hereto or referred to herein, including any actual out-of-pocket costs, 4875-5952-5200 v15 expenses, charges or expenses of Administrative Agent and the reasonable fees, charges and disbursements of counsel for Administrative Agent.
(b) The parties hereto specifically acknowledge and agree that: (i) the execution and delivery of this Agreement shall not be deemed to create a course of dealing or otherwise obligate Administrative Agent or Lenders to execute similar agreements under the same, similar or different circumstances in the future; and (ii) neither Administrative Agent nor any Lender has any obligation to further amend provisions of, or waive compliance with or consent to a departure from the requirements of, the Existing Loan Agreement or any of the other Loan Documents. Except as expressly amended pursuant hereto, the Existing Loan Agreement and each of the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, remain unchanged and in form full force and substance reasonably satisfactory to the Administrative Agenteffect and are hereby ratified and confirmed in all respects, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained Collateral described in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as shall continue to secure the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer Obligations. Each of the Borrower certifying Guarantors party hereto: (Ai) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, specifically consents to the knowledge terms of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect this Agreement; (ii) reaffirms its obligations under its Guaranty and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the under all other Loan Documents to which it is a party;
; (xiii) reaffirms the Administrative Agent shall have received waivers of each and every one of the results defenses to such obligations as set forth in such Guaranty and each such other Loan Document; and (iv) reaffirms that its obligations under such Guaranty and each such other Loan Document are separate and distinct from the obligations of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower any other party 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paidLoan Documents.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Loan and Security Agreement (Danimer Scientific, Inc.)
Conditions of Effectiveness. This Agreement shall become effective ifTHIS AMENDMENT SHALL BECOME EFFECTIVE AS OF THE DATE SET FORTH ABOVE WHEN, on or before September 18AND ONLY WHEN, 2018, all of the following conditions precedent have been metTHE AGENT SHALL HAVE RECEIVED (IN SUFFICIENT COPIES FOR EACH BANK) THE FOLLOWING:
(a) The Administrative Agent's receipt of the following, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts Counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender Amendment executed by the Borrower;, the Guarantor and all of the Banks.
(iiib) a pledge agreement, in substantially Certified copies of the form resolutions of Exhibit E (together with each the Board of Directors of the Borrower authorizing this Amendment and of all documents evidencing other pledge agreement supplement delivered necessary corporate action and governmental and regulatory approvals required to be obtained by it in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed certified by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence Secretary or Assistant Secretary of the completion Borrower.
c) Certified copies of the resolutions of the Board of Directors of the Guarantor authorizing this Amendment and of all documents evidencing other actionsnecessary corporate action and governmental and regulatory approvals required to be obtained by it in connection therewith, recordings and filings of certified by the Secretary or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers Assistant Secretary of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;Guarantor.
(vd) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a A favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent effect set forth in Annex I to this Amendment and each Lender, as to customary such other matters concerning relating to the Borrower and transactions contemplated hereby as any Bank through the Loan Documents as the Required Lenders Agent may reasonably request;.
(ixe) a certificate signed by a Responsible Officer A favorable opinion of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date General Counsel of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending orGuarantor, to the knowledge effect set forth in Annex II to this Amendment and as to such other matters relating to the transactions contemplated hereby as any Bank through the Agent may reasonably request.
f) Evidence that the Guarantor has extended, through the Termination Date as extended hereby, the Guarantee set forth in Section 6.02 of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Existing Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Agreement Amendment shall become effective as of the first date (the “Amendment Effective Date”) on which, and only if, on or before September 18, 2018, all each of the following conditions precedent shall have been met:satisfied (or waived by the Required Lenders):
(a) The Administrative Agent's receipt of the followingAgent shall have received, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, counterparts of this Amendment executed by each Lender of the Loan Parties, the Lenders collectively comprising at least the Required Lenders and the Borrower;Administrative Agent.
(iib) a Revolving Credit Note The Administrative Agent shall have received, in form and a Term Note for each requesting Lender executed by substance satisfactory to the Borrower;
(iii) a pledge agreementAdministrative Agent, counterparts of an amendment to the Intercreditor Agreement in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly A attached hereto executed by each of the Borrower and any applicable Subsidiary, together with:parties party thereto.
(Ac) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the The Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificatereceived, in form and substance reasonably satisfactory to the Administrative Agent, an amendment to each of the KeyBank 2015 Credit Agreement, the KeyBank 2017 Credit Agreement, the JPM Credit Agreement and certified the PNC Bank Credit Agreement, it being understood that, in each case, any such amendment that is in substantially the same form as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 this Amendment or otherwise substantially consistent with the covenants contained in Article VIII;
(vi) certificates as summary of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice amendment terms previously approved by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;shall be deemed satisfactory.
(ixd) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the The Administrative Agent shall have received the results a certificate of a Lien search Secretary or an Assistant Secretary of the Company certifying (including a search i) as to judgmentsthe resolutions authorizing the transactions contemplated by this Amendment, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against (ii) that there have been no amendments to the formation documents of the Borrower under since June 30, 2020, or, if there have been any amendments, attaching copies of such amendments, and (iii) that there have been no changes to the Uniform Commercial Code (or applicable judicial docket) incumbency of officers authorized to execute this Amendment since June 30, 2020, or, if there have been any changes, certifying as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paidsuch changes.
(ce) Unless waived by the Administrative Agent, the The Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements consummated (or shall substantially simultaneously consummate) an issuance of one primary counsel to the Administrative Agent Qualifying Senior Secured Notes.
(directly to such counsel if requested by the Administrative Agentf) to To the extent invoiced to the Borrower at least one (1) Business Day prior to the Closing Amendment Effective Date, plus such additional amounts all of such fees, charges the reasonable out-of-pocket expenses of the Administrative Agent (including the reasonable fees and disbursements as shall constitute its reasonable estimate expenses of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling one firm of accounts between the Borrower and counsel for the Administrative Agent).
(d) The Borrower due and payable on the Amendment Effective Date shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, been paid in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretofull.
Appears in 1 contract
Conditions of Effectiveness. This Agreement Amendment is dated as of January 18, 2008, but shall become be effective ifas of December 28, 2007 when, and only when, (a) the U.S. Borrower shall have paid, on or before September January 18, 20182008, all to the Administrative Agent for the ratable account and benefit of each Lender executing this Amendment on or before 12:00 Noon Eastern time on January 18, 2008, a fee equal to 0.15% of the Total Exposure Amount of each such Lender and (b) the Administrative Agent shall have received, on or before January 18, 2008, the following conditions precedent have been met:
(a) The Administrative Agent's receipt of the followingdocuments, each of which shall be originals, "pdfs" or telecopies such document (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each ) dated the Closing Date date of receipt thereof by the Administrative Agent (or, in the case of certificates of governmental officials, a recent date before the Closing Dateunless otherwise specified) and in sufficient copies for each Lender, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts of this Amendment executed by each Borrower, each Subsidiary Guarantor and the Required Lenders or, as to any of the Required Lenders, advice satisfactory to the Administrative Agent that such Required Lender has executed this Amendment;
(ii) Counterparts of the Consent and Confirmation attached hereto executed by each Subsidiary Guarantor;
(iii) Evidence reasonably satisfactory to the Administrative Agent that any and each all expenses of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution counsel to the Administrative Agent, each Lender and Agent outstanding since the Borrower;date of its last invoice as well as all expenses in connection with this Amendment shall have been paid in full in accordance with Section 10.3 of the Credit Agreement; and
(iiiv) A certificate signed by a Revolving Credit Note and a Term Note for duly authorized officer of each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together withstating that:
(A) to the extent not already All representations and warranties made by such Borrower in Section 3 hereof and in the Administrative Agent's possessionCredit Agreement (as amended hereby) and the other Loan Documents are true and correct in all material respects as of the date hereof as if made on the date hereof (unless stated to relate solely to an earlier date, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blankwhich case such representations and warranties shall be true and correct in all material respects as of such earlier date); and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Dateamendments contemplated by Section 1 above, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent Default shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax occurred and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paidcontinuing.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Agreement (a) The effectiveness of Sections 2 and 3 of this Amendment shall become effective if, on or before September 18, 2018, all be subject to the satisfaction of each of the following conditions precedent have been metprecedent:
(a1) The Administrative Agent shall have received from each Loan Party and the Majority Lenders a duly executed original (or, if elected by the Agent, an executed facsimile copy) of this Amendment.
(2) The Agent shall have received the consent of each Guarantor in its capacity as such to the execution and delivery hereof by the Company.
(3) The Agent shall have received evidence of payment by the Company of all fees, costs and expenses due and payable as of the Effective Date hereunder and under the Credit Agreement, including any fees arising under or referenced in Section 6 of this Amendment and any costs and expenses payable under Section 7(g) of this Amendment (including the Agent's Attorney Costs, to the extent invoiced on or prior to the Effective Date).
(4) The Agent shall have received from the Company an Update Certificate (as to each Loan Party), substantially in the form of Exhibit H to the Credit Agreement, dated the Effective Date and otherwise in form and substance satisfactory to the Agent, covering the period from the last day of the "Reporting Period" covered by the most recent Update Certificate furnished to the Agent and the Lenders pursuant to subsection 6.01(f) of the Credit Agreement through the Effective Date.
(5) The Agent shall have received evidence satisfactory to it that all actions necessary or, in the opinion of the Agent or the Lenders, desirable to perfect and protect the first priority Lien created by the Collateral Documents, and to enhance the Agent's ability to preserve and protect its interests in and access to the Collateral, have been taken, including, without limitation, (i) the Agent's receipt of acknowledgment copies of all UCC-l financing statements filed, registered or recorded to perfect the followingsecurity interests of the Agent for the benefit of the Lenders, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably other evidence satisfactory to the Administrative Agent that there has been filed, registered or recorded (or arrangements made with a reputable filing service to file, register or record) all financing statements and each of the Lenders:
(i) executed counterparts of this Agreementother filings, sufficient in number for distribution to the Administrative Agent, each Lender registrations and the Borrower;
(ii) a Revolving Credit Note recordings necessary and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order advisable to perfect the Liens created thereby;
of the Agent for the benefit of the Lenders in accordance with applicable law, (ivii) the Agent's receipt of written advice relating to such certificates of resolutions Lien and judgment searches as the Agent shall have requested, and such termination statements or other action, incumbency certificates and/or documents as may be necessary to confirm that the Collateral is subject to no other certificates Liens in favor of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the any Persons (other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solventthan Permitted Liens), and (Biii) attached thereto are calculations evidencing compliance the Agent's receipt of all certificates and instruments representing the Pledged Shares, together with stock transfer powers executed in blank as the Agent or the Lenders may specify.
(6) The Agent shall have received from each of the Company and Holdings a copy of the resolutions passed by the board of directors of such Person, certified as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation Effective Date by the Borrower Secretary or an Assistant Secretary of the transaction contemplated hereby and such Person, authorizing the execution, delivery and performance by the Borrower of this Amendment and the validity against the Borrower of the Loan Documents to which it is a party;Credit Agreement (as amended by this Amendment).
(x7) the Administrative The Agent shall have received an opinion of counsel to the results of a Lien search (including a search as Company and addressed to judgmentsthe Agent and the Lenders, bankruptcy, tax and intellectual property matters in its discretion)dated the Effective Date, in form and substance satisfactory to the Agent.
(8) The Agent shall have received all other documents it or any Lender may reasonably request relating to any matters relevant hereto, all in form and substance satisfactory thereto, made against to the Borrower under the Uniform Commercial Code Agent and each Lender.
(or applicable judicial docket9) The representations and warranties in Section 4 of this Amendment shall be true and correct on and as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement Effective Date with the proceeds same effect as if made on and as of the initial Loans funded hereunder and the termination of all commitments thereunder;Effective Date.
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for For purposes of determining compliance with the conditions specified in this Section 4.01subsection 5(a) above, each Lender that has signed executed this Agreement Amendment shall be deemed to have consented to, approved or accepted accepted, or to be satisfied with, each document or other matter either sent, or made available for inspection, by the Agent to such Lender for consent, approval, acceptance or satisfaction, or required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless such Lender.
(c) From and after the Administrative Effective Date, the Credit Agreement is amended as set forth herein. Except as expressly amended pursuant hereto, the Credit Agreement shall remain unchanged and in full force and effect and is hereby ratified and confirmed in all respects.
(d) The Agent shall have received notice from such Lender prior to will notify the proposed Closing Date specifying its objection thereto.Company and the Lenders of the occurrence of the Effective Date. 7. 8
Appears in 1 contract
Conditions of Effectiveness. This The obligations of Administrative Agent and the Lenders to amend the Credit Agreement shall become effective if, on as provided herein are subject to the fulfillment or before September 18, 2018, all waiver in writing of the following conditions precedent have been metprecedent:
(a) The Borrower, Parent and each Lender shall have delivered to Administrative Agent multiple duly executed counterparts of this Amendment;
(b) Borrower shall have delivered to Administrative Agent a fully executed and effective copy of the Fifth Amendment to First Lien Credit Agreement;
(c) Borrower shall have delivered to Administrative Agent evidence, reasonably satisfactory to Administrative Agent's receipt , that the Mortgaged Properties represent at least 90% of the followingtotal value of the Proved Oil and Gas Properties evaluated in the most recently completed Reserve Report after giving effect to exploration and production activities, each acquisitions, dispositions and production;
(d) Administrative Agent shall have received a fully executed and effective copy of which shall be originalsthe Consent to Intercreditor Agreement dated as of even date herewith, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated and among Administrative Agent and the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each First Lien Agent in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(ve) Borrower shall have delivered paid to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by for the chief financial officer account of Borrowereach Lender party hereto, that (Athe fee described in Section 3.06(a) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower Credit Agreement and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received all other fees, expenses and other amounts due and owing to Administrative Agent and the results of a Lien search Lenders, including, without limitation, the amounts described more fully in Section 7 hereof;
(including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower under the Uniform Commercial Code (or applicable judicial docketf) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement)no Material Adverse Effect shall have occurred; and
(xig) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) except to the extent invoiced one (1) Business Day prior to the Closing Datewaived by this Amendment, plus such additional amounts no Default or Event of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower Default shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretooccurred.
Appears in 1 contract
Conditions of Effectiveness. This Agreement Amendment shall become be effective ifas of the date first above written when, and only when, (a) the U.S. Borrower shall have paid, on or before September 18March 5, 20182008, all to the Administrative Agent for the ratable account and benefit of each Lender executing this Amendment on or before 5:00 p.m. Eastern time on March 5, 2008, a fee equal to 0.25% of the Total Exposure Amount of each such Lender and (b) the Administrative Agent shall have received, on or before March 5, 2008, the following conditions precedent have been met:
(a) The Administrative Agent's receipt of the followingdocuments, each of which shall be originals, "pdfs" or telecopies such document (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each ) dated the Closing Date date of receipt thereof by the Administrative Agent (or, in the case of certificates of governmental officials, a recent date before the Closing Dateunless otherwise specified) and in sufficient copies for each Lender, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts of this Amendment executed by each Borrower, each Subsidiary Guarantor and the Required Lenders or, as to any of the Required Lenders, advice satisfactory to the Administrative Agent that such Required Lender has executed this Amendment;
(ii) Counterparts of the Consent and Confirmation attached hereto executed by each Subsidiary Guarantor;
(iii) Evidence reasonably satisfactory to the Administrative Agent that any and each all expenses of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution counsel to the Administrative Agent, each Lender and Agent outstanding since the Borrower;date of its last invoice as well as all expenses in connection with this Amendment shall have been paid in full in accordance with Section 10.3 of the Credit Agreement; and
(iiiv) A certificate signed by a Revolving Credit Note and a Term Note for duly authorized officer of each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together withstating that:
(A) to the extent not already All representations and warranties made by such Borrower in Section 3 hereof and in the Administrative Agent's possessionCredit Agreement (as amended hereby) and the other Loan Documents are true and correct in all material respects as of the date hereof as if made on the date hereof (unless stated to relate solely to an earlier date, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blankwhich case such representations and warranties shall be true and correct in all material respects as of such earlier date); and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Dateamendments contemplated by Section 1 above, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent Default shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax occurred and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paidcontinuing.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
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Conditions of Effectiveness. This Agreement shall become be effective if, on or before September 18, 2018, all of to amend and restate the Existing Credit Agreement when the following conditions precedent have been metsatisfied:
(a) The Administrative Agent's receipt Agent shall have received all of the following, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this AgreementAgreement executed by the Borrower, sufficient in number for distribution to the Administrative Agent, each the LC Issuer, the Swingline Lender and each Term Lender listed on Schedule 1 and by Lenders constituting Majority Lenders under the Borrower;Existing Credit Agreement.
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the BorrowerBorrower in favor of each Lender requesting a Note;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "First Amendment to Pledge Agreement"), duly and Security Agreement executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created therebyparties thereto;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require require, in form and substance satisfactory to the Administrative Agent, evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to such documents and certifications as the Administrative Agent may reasonably require to evidence that each Restricted Person is duly organized or formed, and that each of the Borrower and each Restricted Person is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a certificateMaterial Adverse Effect;
(vi) a favorable opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Restricted Persons in each case in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender;
(vii) a certificate of a Responsible Officer of each Restricted Person either (A) attaching copies of all consents, as to customary matters concerning licenses and approvals required in connection with the Borrower execution, delivery and performance by such Restricted Person and the validity against such Restricted Person of the Loan Documents as the Required Lenders may reasonably requestto which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixviii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a4.03(a) and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Initial Financial Statements that has had or could be reasonably expected toto have, either individually or in the aggregate, have a Material Adverse Effect, ;
(Cix) that there is no action, suit, investigation or proceeding pending or, a duly completed pro forma Compliance Certificate as of the last day of the Fiscal Quarter of the Borrower most recently ended prior to the knowledge Closing Date, signed by a Responsible Officer of the Borrower, threatened in writing in any court reflecting, among other matters, compliance by the Borrower, on a pro forma basis after giving effect to the Credit Extension on the Closing Date or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required otherwise in connection with the consummation by Permitted Unit Purchase, with the Borrower provisions of Section 7.12; provided, however, such determination, to the extent applying paragraph (a) of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower definition of Consolidate EBITDA of the Loan Documents to which it is a party;Borrower, shall be made based on the distribution declared by ETP in respect of the Fiscal Quarter ended May 31, 2006, even though the date for the payment of such distribution will occur after the Closing Date, the announced date for the payment of such distribution being July 14, 2006; and
(x) such other assurances, certificates, documents, consents or opinions as the Administrative Agent shall have received Agent, the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance LC Issuer or the Majority Lenders reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;may require.
(b) All The Borrower shall be concurrently closing the Permitted Unit Purchase.
(c) Any fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(cd) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
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Conditions of Effectiveness. This Agreement shall become effective if, on or before September 18, 2018, all of the date on which the following conditions precedent shall have been met:satisfied (or waived by the Required Lenders):
(a) The Administrative Agent's receipt of the following, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible OfficerOfficer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Required Lenders:
(i) by the Lenders and the Administrative Agent, executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the BorrowerBorrower in favor of each Lender requesting a Note by such ▇▇▇▇▇▇;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower Lenders and any applicable Subsidiarythe Administrative Agent, executed counterparts of the Collateral Documents and the Guaranty, together with:
(A) to by the extent not already in Lenders and the Administrative Agent's possession, certificates representing if any of the pledged equity referred Pledged Equity Interests (other than in respect of the Equity Interests of Lux Holdco) shall be uncertificated securities (as defined in Article 8 of the UCC), confirmation and evidence satisfactory to therein accompanied by undated stock powers executed the Required Lenders that the security interest in blank; andsuch uncertificated securities has been transferred to and perfected for the Administrative Agent for the benefit of the Secured Parties in accordance with Section 9-106 of the Uniform Commercial Code;
(B) such evidence of by the completion Lenders and the Administrative Agent, proper financing statements in form appropriate for filing under the Uniform Commercial Code of all other actions, recordings and filings of or with respect to the Pledge Agreement jurisdictions that the Administrative Agent Required Lenders may deem reasonably necessary or reasonably desirable in order to perfect the Liens created therebyunder the Security Agreement, covering the Collateral described therein;
(C) by the Lenders, copies of any other Uniform Commercial Code, judgment, tax lien, Intellectual Property, or other searches reasonably requested by the Required Lenders with respect to the Collateral, together with copies of the financing statements (or similar documents) disclosed by such searches, and accompanied by evidence that any Liens indicated in any such financing statement that are not permitted by Section 7.01 have been or contemporaneously will be released or terminated (or otherwise provided for in a manner reasonably acceptable to the Required Lenders); and
(D) by the Lenders, evidence that all other actions, recordings and filings that the Required Lenders may deem necessary or desirable in order to perfect the Liens created under the Collateral Documents have been taken or made (including receipt of duly executed payoff letters, UCC-3 termination statements and consent agreements, if applicable) or arrangements therefor satisfactory to the Required Lenders shall have been made;
(iv) the 2019 Mortgage, covering each of the Specified Barge Rigs listed on Schedule 5.07(A), duly executed by the appropriate Loan Party, together with:
(A) evidence that the 2019 Mortgage has been duly executed, acknowledged and delivered and is in form suitable for filing or recording with the United States Coast Guard and all other filing or recording offices that the Required Lenders may deem necessary or desirable in order to create a valid second and subsisting Lien on the Specified Barge Rigs described therein in favor of the Administrative Agent as trustee for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid (or arrangements for such payment satisfactory to the Required Lenders shall have been made); and
(B) to the Lenders, evidence that all other actions that the Required Lenders may deem necessary or desirable in order to create valid second and subsisting Liens on the property described in the Mortgages has been taken, including delivery of an abstract of title evidencing that the 2019 Mortgage has been recorded with the National Vessel Documentation Center, and such other documentation as the Lenders and the Administrative Agent may require, including a certificate of ownership, copy of certificate of documentation, and copy of certificate of financial responsibility (for each jurisdiction where applicable) with respect to each Specified Barge Rig;
(v) to the Lenders and the Administrative Agent, such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party (other than Lux Holdco), as the Administrative Agent Required Lenders may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party or is to be a party;
(vvi) Borrower shall have delivered to the Administrative Agent a certificate, in form Lenders and substance reasonably satisfactory to the Administrative Agent, such documents, agreements and certified certifications as accurate by the chief financial officer Required Lenders may reasonably require to evidence that each Loan Party (other than Lux Holdco), is duly organized or formed, and that each of Borrower, that the Loan Parties is validly existing and in good standing (A) after giving effect to the financing hereunder and each Loan to be advanced on extent that such latter concept is applicable in the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (Brelevant jurisdiction) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicableorganization;
(vii) written notice by Borrower designating a deposit account acceptable to the Lenders and the Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) Agent, a favorable opinion of Sidley Austin ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to covering such customary matters concerning the Borrower Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viii) to the Lenders and the Administrative Agent, favorable opinions of local counsel to the Loan Parties in Delaware, Louisiana, Nevada and Oklahoma, addressed to the Administrative Agent and each Lender, covering such customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(ix) a favorable opinion of local counsel to the Loan Parties in Luxembourg, addressed to the Administrative Agent and each Lender, covering such customary matters concerning Lux Holdco as the Required Lenders may reasonably request;
(x) a favorable opinion of local counsel to the Administrative Agent in Luxembourg, addressed to the Administrative Agent and each Lender, covering such customary matters concerning the validity, perfection and enforceability of the Loan Documents governed by Luxembourg law as the Required Lenders may reasonably request;
(xi) to the Lenders, a certificate of a Responsible Officer of the Borrower either (1) attaching copies of all consents (including, without limitation, from any Governmental Authority, shareholder or other third-party), licenses and approvals required in connection with the execution, delivery and performance by any Loan Party and the validity against any Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect (except that the following consents do not need to be attached to such certificate to the extent delivered as attachments to any other certificate delivered on the Closing Date: (A) any consents of a member or partner of a Loan Party that are required with respect to the pledge of equity under such Loan Party’s Organization Documents and (B) any resolutions by each Loan Party’s governing body authorizing and approving the Loan Documents), or (2) stating that no such consents, licenses or approvals are so required;
(xii) to the Lenders and the Administrative Agent, executed counterparts of the Senior Lien Intercreditor Agreement;
(xiii) to the Lenders and the Administrative Agent, executed copies of the ABL Credit Agreement and the other ABL Loan Documents;
(xiv) to the Lenders and the Administrative Agent, a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections Section 4.02(a) and (bSection 4.02(b) have been satisfied;
(xv) to the Lenders, a reasonably satisfactory opening balance sheet of the Borrower and its consolidated Subsidiaries giving pro forma effect to the transactions occurring on the effective date of the Plan of Reorganization and a customary funds flow memorandum;
(Bxvi) that there has been no event or circumstance since to the date Lenders, copies of the Audited Financial Statements that has had or could be reasonably expected toand unaudited interim consolidated financial statements of the Borrower and its consolidated Subsidiaries for each fiscal quarterly period ended subsequent to December 31, either individually or 2018 as to which such financial statements are available, accompanied by a certificate of a Responsible Officer of the Borrower;
(xvii) to the Lenders, a Solvency Certificate in the aggregateform attached hereto as Exhibit F, executed by a Responsible Officer of Borrower;
(xviii) to the Lenders and the Administrative Agent, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act and the Beneficial Ownership Regulation at least five (5) Business Days prior to the Closing Date to the extent the same have been requested at least ten (10) Business Days prior to the Closing Date;
(xix) to the Lenders, evidence and documentation in form and substance reasonably satisfactory to the Required Lenders that, prior to or substantially concurrently with the Closing Date, Borrower has received cash proceeds of not less than $95,000,000 from the Rights Offering (as defined in the RSA), as such amount may be reduced to provide for netting of fees and expenses
(xx) to the Lenders, projections of the consolidated balance sheets, results of operations, cash flow and unused Commitments for the Borrower and its consolidated Subsidiaries covering the period from January 1, 2019 through the Maturity Date, prepared on a Material Adverse Effectquarterly basis for the fiscal year ending on December 31, 2019 and an annual basis for each fiscal year ending December 31, 2020, December 31, 2021 and December 31, 2022 (the “Initial Projections”), prepared by a Responsible Officer of the Borrower having responsibility over financial matters, all in form and substance reasonably satisfactory to the Required Lenders;
(xxi) to the Lenders, such other assurances, certificates (including a perfection certificate, if requested), documents, reports (including any environmental reports), consents or opinions as any Lender reasonably may require; and
(xxii) to the Lenders, with regard to Lux Holdco:
(A) an up-to-date copy of the constitutional documents of ▇▇▇ ▇▇▇▇▇▇;
(B) an excerpt delivered by the RCS pertaining to Lux Holdco dated no earlier than one (1) Business Day prior to the date of this Agreement;
(C) that there is a non-registration certificate (certificat de non-inscription d’une decision judiciaire) from the RCS pertaining to Lux Holdco and dated no action, suit, investigation or proceeding pending or, earlier than one (1) Business Day prior to the knowledge date of this Agreement, stating that no judicial decision has been registered with the RCS by application of article 13, items 2 to 11bis and article 14 of the BorrowerLuxembourg law dated 19 December 2002 relating to the register of commerce and companies as well as the accounting and the annual accounts of companies, threatened as amended (the “RCS Law”), according to which ▇▇▇ ▇▇▇▇▇▇ would be subject to one of the judicial proceedings referred to in writing these provisions of the RCS Law including in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect particular, bankruptcy (faillite), controlled management (gestion contrôlée), suspension of payments (sursis de paiement), arrangement with creditors (concordat préventif de la faillite) and judicial liquidation (liquidation judiciaire) proceedings.
(D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower a copy of a resolution of the transaction contemplated hereby board of directors of ▇▇▇ ▇▇▇▇▇▇:
(1) approving the terms of, and the executiontransactions contemplated by, delivery and performance by the Borrower this Agreement and the validity against the Borrower of Loan Documents to which it is a party and resolving that it execute, deliver and perform this Agreement and the Loan Documents to which it is a party;
(x2) authorizing a specified person or persons to execute this Agreement and the Administrative Agent shall have received the results of Loan Documents to which it is a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in party on its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement)behalf; and
(xi3) substantially concurrent payoff authorizing a specified person or persons, on its behalf, to sign and/or dispatch all documents and notices (including, if relevant, any Utilisation Request) to be signed and/or dispatched by it under or in connection with this Agreement and the Loan Documents to which it is a party.
(E) a specimen of the signature of each person authorized by the resolution referred to in paragraph (D) above;
(F) a certificate of a Responsible Officer of ▇▇▇ ▇▇▇▇▇▇ confirming that:
(1) it is not subject to bankruptcy (faillite), pre- bankruptcy, insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de faillite), reprieve from payment (sursis de paiement), controlled management (gestion contrôlée);
(2) it is not, on the date of the Agreement, in a state of cessation of payments (cessation de paiement) and has not lost its commercial creditworthiness;
(3) no application has been made by it or, as far as it is aware, by any other person for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any insolvency or similar proceedings;
(4) no application has been made by it for a voluntary or judicial winding-up or liquidation; and
(5) borrowing or guaranteeing or securing, as appropriate, the Obligations would not cause any borrowing, guarantee, security or similar limit binding Lux Holdco to be exceeded.
(G) a certificate of an authorized signatory of Lux Holdco certifying that each copy document relating to it specified in this Section 4.01(a) is correct, complete and in full force and effect as at a date no earlier than the date of all outstanding obligations this Agreement.
(H) a copy of the shareholders’ register of the Lux Holdco (prior to the registration of the pledge created under the Existing Credit Agreement with the proceeds Lux Share Pledge Agreement) evidencing that ▇▇▇▇▇▇ North America Operations, LLC owns 100% of the initial Loans funded hereunder outstanding Equity Interests of Lux Holdco.
(I) evidence reasonably satisfactory to the Required Lenders that Lux Holdco and one or more other Loan Parties shall, in the termination aggregate, have acquired and directly own 100% of all commitments thereunder;the outstanding Equity Interests of ▇▇▇▇▇▇ Drilling Arctic Operating, LLC, Quail Tools, L.P., ▇▇▇▇▇▇ Drilling Offshore USA L.L.C. and Quail USA, LLC.
(b) All The Administrative Agent and Lenders shall have received all fees required to be paid and other amounts due and payable on or prior to the Administrative Agent on or before Closing Date, including, without limitation, all filing and recording fees and Taxes and, to the extent invoiced at least two Business Days prior to the Closing Date shall have been paid and Date, reimbursement or payment of all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder (including all such reasonable fees, charges and disbursements of one primary counsel to the Administrative Agent (Agent, paid directly to such counsel if requested by the Administrative Agent).
(c) The Loan Parties’ capital structure and financing plan shall be satisfactory to the extent invoiced one Required Lenders (1) Business Day prior it being agreed and understood that the capital structure and financing plan as set forth in the RSA as in effect on the “RSA Effective Date” as defined in the RSA, and as amended by any amendments consented to in writing by the Required Lenders, shall be deemed satisfactory to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative AgentRequired Lenders).
(d) The Borrower Bankruptcy Court shall have delivered entered the Confirmation Order, in form and substance reasonably satisfactory to the Administrative AgentRequired Lenders, such order shall have become a Final Order and any Lender requesting all conditions to the same, a Beneficial Ownership Certification, effectiveness of the Plan of Reorganization shall have been satisfied or waived in each case at least five accordance therewith.
(5e) Business Days prior Prior to or substantially concurrently with the Closing Date, DIP Credit Agreement (as defined in the ABL Credit Agreement) shall have been terminated and all Obligations (as defined in the DIP Credit Agreement) shall have been paid in full in cash (other than (i) indemnification obligations and other contingent obligations not then due and payable and as to which no claim has been made and (ii) any letters of credit issued thereunder that constitute Existing Letters of Credit (as defined in the ABL Credit Agreement)). Without limiting the generality of the provisions of the last paragraph of Section 10.039.03, for purposes of determining compliance with the conditions specified in this Section 4.01, 4.01 and Section 4.02 each Lender that has signed this Agreement and each Lender Claimant shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.satisfact
Appears in 1 contract
Sources: Second Lien Term Loan Credit Agreement (Nabors Industries LTD)
Conditions of Effectiveness. This Agreement shall become effective if, on or before September 18, 2018, and as of the first date (the “Restatement Effective Date”) on which all of the following conditions precedent shall have been metsatisfied:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originalsoriginal, "pdfs" or e-mail (in a .pdf format) or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible OfficerOfficer of the signing Loan Party, each dated the Closing Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Restatement Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender Agreement and the BorrowerGuaranty;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the BorrowerBorrower in favor of each Lender requesting a Note prior to the Restatement Effective Date;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party or is to be a party;
(viv) Borrower shall have delivered to such documents and certifications as the Administrative Agent a certificatemay reasonably require to evidence that each Loan Party is duly organized or formed, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan Party is validly existing, in good standing and qualified to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as engage in business in its jurisdiction of June 30, 2018 with the covenants contained in Article VIIIincorporation or formation;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viiiv) a favorable opinion of Sidley Austin ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Borrower Loan Parties and the Loan Documents as the Required Lenders Administrative Agent may reasonably request;
(vi) a favorable opinion of in-house counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vii) a favorable opinion of ▇▇▇▇▇▇▇ LLP, local counsel to the Loan Parties in Maryland, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying that (A1) that the conditions specified in Sections 4.02(aSection 4.01(d) and (b) Section 4.02 have been satisfied, satisfied and (B2) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding is pending or, to the knowledge of the Borrowerany Loan Party, threatened in writing in any court or before any arbitrator or Governmental Authority related to the credit facility being provided under this Agreement or that would could reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a partyEffect;
(x) a Solvency Certificate from the Administrative Agent shall have received Loan Parties certifying that, after giving effect to the results of a Lien search transactions to occur on the Restatement Effective Date (including a search as including, without limitation, any Credit Extension to judgments, bankruptcy, tax and intellectual property matters in its discretionoccur on the Restatement Effective Date), in form the REIT and substance reasonably satisfactory theretoits Consolidated Subsidiaries, made against the Borrower under the Uniform Commercial Code on a consolidated basis, are Solvent;
(or applicable judicial docketxi) a duly completed Compliance Certificate as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of the BorrowerRestatement Effective Date (giving pro forma effect to the transactions to occur on the Restatement Effective Date, indicating among other things that including, without limitation, all Credit Extensions to occur on the assets Effective Date), signed by a Responsible Officer of each Borrower (such certificate being referred to herein as the Borrower are not subject to any Liens (except for Liens permitted under this Agreement“Pro Forma Restatement Effective Date Compliance Certificate”); and
(xixii) substantially concurrent payoff in full of all outstanding obligations under such other assurances, certificates, documents, consents or opinions as the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;Administrative Agent or either Bookrunner reasonably may require.
(bi) All fees required to be paid to the Administrative Agent and the Bookrunners on or before the Closing Restatement Effective Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Closing Restatement Effective Date shall have been paid.
(c) All due diligence with respect to the REIT, the Borrower and their respective Subsidiaries, in scope and determination satisfactory to the Administrative Agent, the Bookrunners and the Lenders in their sole discretion, shall have been completed.
(d) There shall not have occurred since September 30, 2017 any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect.
(e) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) prior to or on the first Business Day prior to the Closing Restatement Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(df) The Borrower All accrued and unpaid interest and fees with respect to the Revolving Credit Commitments and Loans under the Existing Credit Agreement as of (and immediately prior to giving effect to) the Restatement Effective Date shall have delivered to been, or concurrently with the Administrative Agentextensions of credit being made hereunder on the Restatement Effective Date will be, and any Lender requesting the same, a Beneficial Ownership Certification, paid in each case at full.
(g) At least five (5) Business Days business days prior to the Closing Restatement Effective Date, the Administrative Agent and the Lenders shall have received documentation and other information with respect to the Borrower and each of the Guarantors that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA Patriot Act (Title III of Pub. L. 107 56 (signed into law October 26, 2001)) and regulations implemented by the US Treasury’s Financial Crimes Enforcement Network under the Bank Secrecy Act. Without limiting the generality of the provisions of the last paragraph of Section 10.039.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Restatement Effective Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of this Agreement shall become effective if, on or before September 18, 2018, all and the obligation of the L/C Issuer and each Lender to make the initial Credit Extensions hereunder are subject to satisfaction of the following conditions precedent have been metprecedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals, "pdfs" or e-mail (in a .pdf format) or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible OfficerOfficer or a duly authorized officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender duly executed by the BorrowerBorrower in favor of each Lender requesting a Note;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiaryeach Loan Party that is a party thereto, together with:
(A) to certificates or instruments representing the extent not already Certificated Securities (as defined in the Administrative Agent's possession, certificates representing the pledged equity referred to therein Pledge Agreement) accompanied by undated stock all endorsements and/or powers executed in blank; andrequired by the Pledge Agreement,
(B) such evidence of that all proper financing statements have been or contemporaneously therewith will be duly filed under the completion Uniform Commercial Code of all other actions, recordings and filings of or with respect to the Pledge Agreement jurisdictions that the Administrative Agent reasonably may deem reasonably necessary or reasonably desirable in order to perfect the Liens created therebyunder the Pledge Agreement, covering the Collateral described in the Pledge Agreement,
(C) completed requests for information listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements, and
(D) evidence that all other actions, recordings and filings that the Administrative Agent reasonably may deem necessary or desirable in order to perfect the Liens created under the Pledge Agreement have been taken (including receipt of duly executed payoff letters and UCC-3 terminations, if any);
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party or is to be a party;
(v) Borrower shall have delivered to such documents and certifications as the Administrative Agent a certificatemay reasonably require to evidence that each Loan Party is duly organized or formed, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIIIexpected to have a Material Adverse Effect;
(vi) certificates as favorable opinions of a recent date of the good standing of Borrower ▇▇▇▇▇▇▇▇ Chance US LLP and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin ▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Borrower Loan Parties and the Loan Documents as the Required Lenders Administrative Agent may reasonably request;
(vii) [Intentionally Omitted];
(viii) [Intentionally Omitted];
(ix) a certificate of a Responsible Officer of the REIT either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by each Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(x) a certificate signed by a Responsible Officer of the Borrower certifying REIT (A) certifying that (1) the conditions specified in Sections 4.02(athis Section 4.01 have been satisfied (other than those conditions contingent upon the satisfaction of the Administrative Agent and/or the Lenders with respect to certain items received by them under this Section 4.01) and (b2) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding is pending or, to the knowledge of the Borrowerany Loan Party, threatened in writing in any court or before any arbitrator or Governmental Authority that would could reasonably be expected to be adversely determined and, if adversely determined, could reasonably be expected to have a Material Adverse Effect and (DB) that no consents, licenses or approvals are required in connection with the consummation by the Borrower attaching copies of the transaction contemplated hereby and operating agreements, partnership agreements or other applicable organizational documents of each Person whose Equity Interests are included in the executionCollateral, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent organizational documents shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), be in form and substance reasonably satisfactory theretoto the Administrative Agent;
(xi) an Availability Certificate duly certified by the chief executive officer, made against the Borrower under the Uniform Commercial Code (chief financial officer, treasurer or applicable judicial docket) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets controller of the Borrower, indicating among together with the items set forth in clauses (i) through (vi) of Section 6.02(f);
(xii) a Solvency Certificate from the REIT certifying that each Loan Party is Solvent after giving effect to the Merger and the Credit Extensions to occur on the Closing Date;
(xiii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect (and the amount, types and terms and conditions of all such insurance shall be satisfactory to the Administrative Agent), together with the certificates of insurance and endorsements, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured under each policy of liability insurance maintained with respect to all of the Initial Eligible Investment Properties;
(xiv) the financial statements referenced in Sections 5.05(a), (b) and (d);
(xv) a certified copy of the Acquisition Documents, duly executed by the parties thereto, together with all agreements, instruments and other things documents delivered in connection therewith as the Administrative Agent shall reasonably request;
(xvi) the Defeasance Escrow Agreements, duly executed by each of the parties thereto;
(xvii) certified copy of a certificate of merger or other confirmation reasonably satisfactory to the Lenders of the consummation of the Merger from the Secretary of State of the State of Maryland;
(xviii) evidence satisfactory to the Administrative Agent and the Lenders that the assets initial Credit Extensions hereunder in connection with the Merger and the application of each the Borrower are proceeds thereof do not subject to violate any Liens of the regulations of the FRB (except for Liens permitted under this Agreementincluding, without limitation, Regulation U of the FRB); and
(xixix) substantially concurrent payoff in full of all outstanding obligations under such other assurances, certificates, documents, consents or opinions as the Existing Credit Agreement with Administrative Agent, the proceeds of L/C Issuer, the initial Loans funded hereunder and the termination of all commitments thereunder;Swing Line Lender or any Lender reasonably may require.
(bi) All fees required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) [intentionally omitted]
(d) There shall not have occurred since December 31, 2010 any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect.
(e) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least one (1) Business Day prior to the Closing Date, plus such reasonable additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(df) The Borrower Merger Agreement shall be in full force and effect.
(g) The Merger shall have delivered been consummated strictly in accordance with the terms of the Merger Agreement, without any material waiver or amendment not consented to by the Administrative AgentLenders of any term, provision or condition set forth therein, and any Lender requesting in compliance with all applicable requirements of Law.
(h) The Administrative Agent shall have received true and complete copies of the sameMerger Agreement and each agreement, a Beneficial Ownership Certificationcertificate, instrument, letter or other document related thereto (including in each case at least five each exhibit, schedule, annex or attachment thereto) (5) Business Days prior the “Acquisition Documents”), and all representations and warranties of the REIT, the Borrower, W.P. ▇▇▇▇▇ & Co. LLC and CPA®:14 set forth in the Merger Agreement shall have been true and correct in all material respects (or, to the extent any such representation and warranty is by its terms qualified as to materiality, “Material Adverse Effect” or similar language, in all respects) as of the time such representations and warranties were made, and all such representations and warranties shall be true and correct in all material respects (or, to the extent any such representation and warranty is by its terms qualified as to materiality, “Material Adverse Effect” or similar language, in all respects) as of the Closing DateDate as if such representations and warranties were made on and as of such date, unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects (or, to the extent any such representation and warranty is by its terms qualified as to materiality, “Material Adverse Effect” or similar language, in all respects) as of such earlier date. Without limiting the generality of the provisions of the last paragraph of Section 10.039.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Corporate Property Associates 16 Global Inc)
Conditions of Effectiveness. This Agreement Amendment shall become effective as of the first date (the “Amendment Effective Date”) on which, and only if, on or before September 18, 2018, all each of the following conditions precedent shall have been met:satisfied (or waived by the Required Lenders):
(a) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent's receipt , counterparts of this Amendment executed by each of the followingLoan Parties, the Lenders collectively comprising at least the Required Lenders (in their capacities as Lenders and, if applicable, as Swap Counterparties) and the Administrative Agent.
(b) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, a Joinder Agreement to the Subsidiary Guaranty executed by each Loan Party identified as a New Guarantor on Schedule 1 attached hereto.
(c) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, counterparts of the Intercreditor Agreement executed by each of the parties party thereto.
(d) The Borrower and certain of its Subsidiaries shall have (i) executed and delivered the Pledge Agreement, (ii) made all filings necessary or desirable in order to perfect and protect the first priority liens and security interests created in the Collateral (as defined in the Pledge Agreement) and (iii) delivered to the Collateral Agent certificated securities of each applicable Issuer (as defined in the Pledge Agreement), if any, together with any applicable share powers delivered in blank.
(e) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, an amendment to each of the KeyBank Credit Agreements, the ▇▇▇▇▇ Fargo Credit Agreement and the JPM Credit Agreement, it being understood that, in each case, any such amendment that is in substantially the same form as this Amendment or otherwise substantially consistent with the summary of amendment terms previously approved by the Administrative Agent shall be deemed satisfactory.
(f) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Amendment Effective Date) of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Borrower and the other Loan Parties and ▇▇▇▇▇▇▇ LLP, special Maryland counsel to the Company, in each case, in form and substance reasonably acceptable to the Administrative Agent and covering such other matters relating to the Loan Parties and this Amendment as the Required Lenders shall reasonably request. The Borrower hereby requests such counsel to deliver such opinion.
(g) The Administrative Agent shall have received the following items from the Borrower:
(i) Certificates of good standing for each Loan Party from the states of organization of such Loan Party, certified by the appropriate governmental officer and dated not more than thirty (30) days prior to the Amendment Effective Date;
(ii) Copies of the formation documents of each Loan Party certified by an officer of such Loan Party, together with all amendments thereto;
(iii) Incumbency certificates, executed by officers of each Loan Party, which shall be originals, "pdfs" or telecopies identify by name and title and bear the signature of the Persons authorized to sign the Loan Documents on behalf of such Loan Party (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated and to make borrowings and request other extensions of credit hereunder on behalf of the Closing Date (orBorrower, in the case of certificates of governmental officialsthe Borrower), a recent date before the Closing Date) and each in form and substance reasonably satisfactory to upon which certificate the Administrative Agent and each the Lenders shall be entitled to rely until informed of the Lenders:
(i) executed counterparts of this Agreement, sufficient any change in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed writing by the Borrower;
(iiiiv) Copies, certified by a pledge agreementSecretary or an Assistant Secretary of each Loan Party of the resolutions (and resolutions of other bodies, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed if any are reasonably deemed necessary by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in counsel for the Administrative Agent's possession) authorizing the transactions contemplated by this Amendment, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) be executed and delivered by the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement)Loan Parties; and
(xiv) substantially concurrent payoff in full UCC financing statement, judgment, and tax lien searches with respect to each Loan Party from its state of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;organization.
(bi) All The fees required to be paid to provided for in Section 5, (ii) any fees separately agreed by the Administrative Agent on or before and the Closing Date shall have been paid Borrower, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agentiii) to the extent invoiced to the Borrower at least one (1) Business Day prior to the Closing Amendment Effective Date, plus such additional amounts all of such fees, charges the reasonable out-of-pocket expenses of the Administrative Agent (including the reasonable fees and disbursements as shall constitute its reasonable estimate expenses of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling one firm of accounts between the Borrower and counsel for the Administrative Agent)) due and payable on the Amendment Effective Date shall have been paid in full.
(di) The Borrower Administrative Agent and each Lender shall have delivered to received all documentation and other information about the Loan Parties as shall have been reasonably requested by the Administrative Agent, and any Agent or such Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting Amendment Effective Date that it shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the generality of Patriot Act to the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved extent requested by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender at least five (5) Business Days prior to the proposed Closing Date specifying its objection theretoAmendment Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This The amendment and restatement of the Existing Credit Agreement pursuant to Section 1 of this Agreement shall become effective if, as of the first date (the “Restatement Effective Date”) on or before September 18, 2018, all which each of the following conditions precedent shall have been metsatisfied:
(a) The Administrative Agent's receipt of Agent (or its counsel) shall have received from the followingBorrower, the Required Lenders, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified2020 Dollar Tranche Lender, each properly executed by 2020 Multicurrency Tranche Lender, the Swingline Lender, the Issuing Bank and the Administrative Agent either a Responsible Officer, each counterpart of this Agreement signed on behalf of such party or written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders under the Restated Credit Agreement and dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Restatement Effective Date) and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative Agent and each its counsel and covering such matters relating to the Loan Parties, the Loan Documents, this Agreement or the Transactions as the Administrative Agent shall have reasonably requested. 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 have reasonably requested relating to the organization, existence and good standing of the Lenders:initial Loan Parties, the authorization of the Transactions and any other legal matters relating to such Loan Parties, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel and as further described in the list of closing documents attached as Exhibit E to the Restated Credit Agreement.
(d) The Administrative Agent shall have received evidence reasonably satisfactory to it that the Borrower has repaid in full in Dollars all outstanding Term Loans, together with accrued interest to the extent required by Section 2.13 of the Existing Credit Agreement, break funding payments (if any) pursuant to Section 2.16 of the Existing Credit Agreement and all other outstanding Obligations owing in respect of the Term Loans.
(e) The Administrative Agent shall have received (i) for the account of each 2020 Revolving Lender party hereto that delivers its executed counterparts of signature page to this Agreement, sufficient in number for distribution to Agreement by no later than the date and time specified by the Administrative Agent, each Lender an upfront fee in an amount equal to the amount previously disclosed to the Lenders and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form payment of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
’s and its affiliates’ fees and reasonable out-of-pocket expenses (B) such evidence including reasonable out-of-pocket fees and expenses of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that counsel for the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(ivAgent) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Documents. The Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in waive any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are prior written notice required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with or the proceeds Restated Credit Agreement in respect of (x) the prepayment of the initial Term Loans funded hereunder contemplated by Section 3(d) above and (y) any prepayment of the termination Revolving Loans being effected on the Restatement Effective Date. Upon the occurrence of all commitments thereunder;
(b) All fees required to be paid to the Restatement Effective Date, the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between notify the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to Lenders of the Administrative AgentRestatement Effective Date, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement such notice shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoconclusive and binding.
Appears in 1 contract
Conditions of Effectiveness. This (a) The effectiveness of the Lenders’ Commitments under this Agreement shall become effective if, on are subject to the satisfaction (or before September 18, 2018, all waiver) of the following conditions precedent have been metprecedent:
(ai) The Administrative Agent's receipt of Agent shall have received the following, each of which shall be originals, "pdfs" originals or telecopies facsimiles or electronic image scans thereof (followed promptly by originals) unless otherwise specified), each properly executed by a Responsible OfficerOfficer of the Borrower (unless otherwise specified), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i1) this Agreement executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, by each Lender and the Borrowerparty hereto;
(ii2) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence favor of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created therebyeach Lender requesting a Note;
(iv3) such certificates of or resolutions or other action, action or incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which and resolutions of the Board of Directors of the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form approving and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that authorizing (A) after giving effect to the financing hereunder execution, delivery and each performance of this Agreement and the other Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, Documents and (B) attached thereto are calculations evidencing compliance the entry into the Accelerated Share Repurchase Program and the execution, delivery and performance of any agreement governing such program, certified as of June 30, 2018 with the covenants contained Closing Date by its secretary or an assistant secretary as being in Article VIIIfull force and effect without modification or amendment;
(vi4) certificates such documents and certifications as of a recent date of the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing, in good standing of Borrower and each Subsidiary whose equity securities are subject qualified to engage in business in the Pledge Agreement under the laws state of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;organization; and
(vii5) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds favorable opinions of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ LLP and the Borrower’s General Counsel, addressed to the Administrative Agent and each Lender, in form substantially as set forth in Exhibits E-1 and E-2.
(ii) Any and all costs and expenses incurred by the Administrative Agent prior to customary matters concerning or on the Closing Date and required to be paid or reimbursed by the Borrower pursuant to the terms hereof, including the fees and expenses of Cravath, Swaine & ▇▇▇▇▇ LLP, counsel to the Loan Documents as the Required Lenders may reasonably request;Administrative Agent, shall have been so paid or reimbursed.
(ixiii) The representations and warranties of the Borrower contained in Article V shall be true and correct in all material respects on and as of the Closing 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 as of such earlier date.
(iv) On and as of the Closing Date, no Default shall exist.
(v) The Administrative Agent shall have received a certificate certificate, dated the Closing Date and signed by a Responsible Officer of the Borrower certifying (A) that Borrower, confirming compliance with the conditions specified set forth in Sections 4.02(aparagraphs (iii) and (iv) of this Section 4.01(a).
(b) have been satisfied, (B) that there has been no event or circumstance since Upon the date satisfaction of all of the Audited Financial Statements that has had conditions to effectiveness (or could be reasonably expected towaiver thereof) set forth in Section 4.01(a), either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by Administrative Agent shall promptly notify the Borrower and the validity against the Borrower Lenders of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results effectiveness of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement such notice shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretobinding on all parties hereto.
Appears in 1 contract
Conditions of Effectiveness. This Agreement Amendment shall become effective if, on or before September 18, 2018, all of the following conditions precedent have been metfirst date (the “Amendment No. 1 Effective Date”) on which:
(a) The the Administrative Agent's receipt Agent shall have received counterparts of this Amendment executed by the Company, each Designated Borrower and the Required Lenders or, as to any of the followingLenders, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably evidence satisfactory to the Administrative Agent and each of the Lenders:that such Lender has executed this Amendment;
(ib) the Administrative Agent shall have received, for the ratable account of each Lender that has executed counterparts of this Agreement, sufficient in number for distribution and delivered a counterpart hereof to the Administrative AgentAgent on or prior to the Amendment No. 1 Effective Date, each Lender and a consent fee in an amount equal to 0.10% of the Borrower;Aggregate Commitments of such Lender; NYDOCS02/1231838
(iic) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
shall have received (ivi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officers Officer, a secretary or assistant secretary of the Borrower as the Administrative Agent may reasonably require Company evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement Amendment and the other Loan Documents to which the Borrower Company is a party or is to be a party;
and (vii) Borrower shall have delivered to such documents and certifications as the Administrative Agent a certificatemay reasonably require to evidence that the Company is duly organized or formed, and that the Company is validly existing, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject qualified to the Pledge Agreement under the laws of engage in business in its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(viid) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) shall have received a certificate signed by of a Responsible Officer of the Borrower certifying Company either (Ai) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date attaching copies of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no all consents, licenses or and approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower Company and the validity against the Borrower Company of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (ii) stating that no such consents, licenses or approvals are so required;
(xe) the Administrative Agent shall have received a certificate of the results Company dated as of the date hereof signed on behalf of the Company by a Lien search Responsible Officer of the Company, certifying on behalf of the Company that:
(including a search i) immediately before and after giving effect to this Amendment and the transactions contemplated hereby, the representations and warranties set forth in Article V of the Credit Agreement and each other Loan Document are true and correct in all material respects on and as of the Amendment No. 1 Effective Date, except to judgments, bankruptcy, tax the extent such representations and intellectual property matters in its discretion)warranties specifically relate to an earlier date, in form which case such representations and substance reasonably satisfactory theretowarranties shall be true and correct in all material respects on and as of such earlier date; provided that, made against the Borrower under the Uniform Commercial Code (in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or applicable judicial docket) as in modified by materiality or Material Adverse effect in each jurisdiction the text thereof, in which filings or recordations under the Uniform Commercial Code should case such qualified representations and warranties shall be made to evidence or perfect security interests true and correct in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement)respects; and
(xiii) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds on and as of the initial Loans funded hereunder Amendment No. 1 Effective Date, no Default has occurred and the termination of all commitments thereunder;is continuing; and
(bf) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless unless waived by the Administrative Agent, the Borrower Company shall have paid (or substantially concurrently with the satisfaction of the other conditions set forth herein, on the Amendment No. 1 Effective Date, shall pay) all reasonable and documented out-of-pocket fees, charges costs and disbursements expenses of one primary counsel to the Administrative Agent in connection with the preparation, negotiation, execution and delivery of this Amendment (directly including the reasonable and documented fees, disbursements and other charges of Shearman & Sterling LLP as special New York counsel to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Effective Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.NYDOCS02/1231838
Appears in 1 contract
Sources: Credit Agreement (Tiffany & Co)
Conditions of Effectiveness. This The effectiveness of this Agreement shall become effective if, on or before September 18, 2018, all and the obligation of the L/C Issuer and each Lender to make the initial Credit Extensions hereunder is subject to satisfaction of the following conditions precedent have been metprecedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originalsoriginal, "pdfs" or e-mail (in a .pdf format) or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible OfficerOfficer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender Agreement and the BorrowerGuaranty Agreement;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the BorrowerBorrower in favor of each Lender requesting a Note prior to the Closing Date;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiaryeach Loan Party, together with:
(A) to certificates or instruments, if any, representing the extent not already Certificated Securities (as defined in the Pledge Agreement), if any, accompanied by all endorsements and/or powers required by the Pledge Agreement,
(B) proper financing statements, to be filed under the Uniform Commercial Code of all jurisdictions that the Administrative Agent's possessionAgent may deem necessary or desirable in order to perfect the Liens created under the Pledge Agreement, certificates representing covering the pledged equity Collateral described in the Pledge Agreement,
(C) completed requests for information listing all effective financing statements filed in the jurisdictions referred to therein accompanied in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(D) a Perfection Certificate, in substantially the form of Exhibit I-1, duly executed by undated stock powers executed in blankeach of the Loan Parties; and
(BE) such evidence of the completion of that all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created therebyunder the Pledge Agreement have been taken (including receipt of duly executed payoff letters and UCC-3 terminations, if any);
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party or is to be a party;
(v) Borrower shall have delivered to such documents and certifications as the Administrative Agent a certificatemay reasonably require to evidence that each Loan Party is duly organized or formed, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIIIexpected to have a Material Adverse Effect;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Borrower Loan Parties and the Loan Documents as the Required Lenders Administrative Agent may reasonably request;
(vii) a favorable opinion of in-house counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(viii) a favorable opinion of ▇▇▇▇▇▇▇ LLP, local counsel to the Loan Parties in Maryland, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(ix) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(x) a certificate signed by a Responsible Officer of the Borrower (x) certifying that (A1) that the conditions specified in Sections 4.02(athis Section 4.01 have been satisfied (other than those conditions contingent upon the satisfaction of the Administrative Agent and/or the Lenders with respect to certain items received by them under this Section 4.01) and (b2) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding is pending or, to the knowledge of the Borrowerany Loan Party, threatened in writing in any court or before any arbitrator or Governmental Authority related to the credit facility being provided under this Agreement or that would could reasonably be expected to have a Material Adverse Effect and (Dy) that no consents, licenses or approvals are required in connection with the consummation by the Borrower attaching copies of the transaction contemplated hereby and operating agreements, partnership agreements or other applicable organizational documents of each Person whose Equity Interests are included in the executionCollateral, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent organizational documents shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), be in form and substance reasonably satisfactory thereto, made against to the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); andAdministrative Agent;
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds a Borrowing Base Certificate duly certified by a Responsible Officer of the initial Loans funded hereunder and the termination of all commitments thereunderBorrower;
(xii) a Solvency Certificate from the Loan Parties certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, any Credit Extension to occur on the Closing Date), the REIT and its Consolidated Subsidiaries, on a consolidated basis, are Solvent;
(xiii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect (and the amount, types and terms and conditions of all such insurance shall be satisfactory to the Lenders), together with the certificates of insurance and endorsements, naming, with respect to each policy of liability insurance maintained by any Loan Party, the Administrative Agent, on behalf of the Creditor Parties, as an additional insured;
(xiv) the financial statements referenced in Sections 5.05(a) and (b).
(xv) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or any Arranger reasonably may require.
(i) All fees required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Agreement shall become effective ifas of May 24, on or 2002, when, and only when, before September 183:00 p.m. May 24, 20182002, all of (x) the following conditions precedent Existing Credit Agreement shall have been met:
terminated and all indebtedness and other monetary obligations thereunder shall have been repaid in full by the borrowers thereunder and (ay) The Administrative Agent's receipt of the following, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
shall have received (i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender Agreement executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning (ii) counterparts of the Borrower Guarantee executed by the Guarantor and the Loan Documents Administrative Agent and (iii) all of the following documents, each document (unless otherwise indicated) being dated the date of receipt thereof by the Administrative Agent (which date shall be the same for all such documents except as otherwise approved by the Required Lenders may reasonably request;Administrative Agent), in form and substance satisfactory to the Administrative Agent:
(ixa) a certificate signed by a Responsible Officer Certified copies of the resolutions of the Board of Directors of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event approving or circumstance since the date authorizing approval of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower of this Agreement and the validity against the Borrower of the Loan Documents all documents evidencing other necessary corporate action and governmental and regulatory approvals, if any, with respect to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;.
(b) All fees required A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paiddelivered hereunder.
(c) Unless waived by a certificate or certificates of an appropriate officer of the Administrative Agentjurisdiction of organization of the Borrower, dated as of a date reasonably near the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Effective Date, plus such additional amounts attaching the certificate of such fees, charges and disbursements as shall constitute its reasonable estimate incorporation or other constitutive documents of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and each amendment thereto on file in his office and certifying that (i) such certificate of incorporation or other constitutive documents are true and complete copies thereof, (ii) such amendments (if any) are the Administrative Agent).only amendments to such certificate of incorporation or other constitutive documents on file in his office, (iii) the Borrower has paid all franchise taxes to the date of such certificate and (iv) the Borrower is duly incorporated and in good standing under the laws of such jurisdiction; and
(d) The A favorable opinion of each of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, a General Counsel or Deputy General Counsel of the Borrower shall have delivered to or the Administrative AgentCredit Suisse First Boston business unit, and ▇▇▇▇▇▇▇▇ Kraft & ▇▇▇▇, counsel for the Guarantor, substantially in the form of Exhibit ▇-▇, ▇-▇, and D-3, respectively, and as to such other matters as any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless and any Swing Line Bank through the Administrative Agent shall have received notice from such Lender prior may reasonably request.
(e) (i) Certified copies of the resolutions of the Board of Directors of the Guarantor approving or authorizing approval of the execution, delivery and performance of the Guarantee and of all documents evidencing other necessary corporate action and governmental and regulatory approvals, if any, with respect to the proposed Closing Date specifying its objection theretoGuarantee.
Appears in 1 contract
Conditions of Effectiveness. This Agreement is subject to the provisions of Section 10.01 of the Credit Agreement, and shall become effective ifwhen, on or before September 18and only when, 2018, all each of the following conditions precedent shall have been metsatisfied:
(a) The the Administrative Agent's receipt Agent shall have received all of the followingfollowing documents (in sufficient copies for each Lender), each of which shall be originals, "pdfs" or telecopies such document (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each ) dated the Closing Date (or, in date of receipt thereof by the case of certificates of governmental officials, a recent date before the Closing Date) Administrative Agent and each in form and substance reasonably satisfactory to the Administrative Agent:
(i) counterparts of this Agreement executed by (A) the Borrower, (B) the Required Lenders, (C) all the Lenders identified on Schedule 2.01-A to this Agreement, (D) all the Additional Lenders, (E) the Swing Line Lender, and (F) the L/C Issuer, or, as to any such Lender or Additional Lender, advice satisfactory to the Administrative Agent and each of the Lenders:
(i) that such Lender or Additional Lender has executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) one or more Notes in the form of Exhibit C-3 or Exhibit C-4 to this Agreement, as applicable, payable to each Lender or Additional Lender requesting such a Revolving Credit Note and a Term Note for each requesting Lender Note, duly executed by the Borrower, evidencing the Replacement Term Loans or Replacement Revolving Loans of such Lender or Additional Lender, as applicable;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly Certificate executed by a Responsible Officer of the Borrower and any applicable SubsidiaryBorrower, together with:
dated the Agreement Effective Date, (A) attaching true and correct copies of resolutions of the Borrower as to the extent not already in the Administrative Agent's possessionexecution and delivery of this Agreement and any such Note, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) confirming the matters provided in subsection (c) below, and (C) as to such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower matters as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;request; and
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viiiiv) a favorable opinion of Sidley Austin Debevoise & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Borrower, addressed to the Administrative Agent Agent, each Lender and each Additional Lender, as to customary such matters concerning with respect to the Borrower Borrower, this Agreement, the Credit Agreement, as amended by this Agreement, and the Loan Documents such Notes as the Required Lenders Administrative Agent may reasonably request;.
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets payment of the Borrower, indicating among other things that following: (i) for the assets account of each Lender, accrued and unpaid interest on the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full Loans of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid such Lender to the Administrative Agent on or before Agreement Effective Date; (ii) for the Closing Date shall have been paid account of each Revolving Lender, accrued and all unpaid facility fees required and Letter of Credit Fees due to be paid such Lender to the Lenders on or before Agreement Effective Date; (iii) for the Closing Date shall have been paid.
(c) Unless waived by account of the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements amount of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or any expenses required to be incurred by it through reimbursed on or before the closing proceedings Agreement Effective Date pursuant to Section 5.03 hereof; and (provided that such estimate iv) for the account of any lead arranger in connection with the transactions contemplated hereby, any amounts as may have been separately agreed with the Borrower;
(c) the representations and warranties of the Loan Parties contained in Section 5.04 hereof shall not thereafter preclude a final settling of accounts between the Borrower be true and the Administrative Agent).correct in all material respects; and
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender evidence that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or arrangements satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior been made for the application of the proceeds of the Replacement Revolving Loans made by the Additional Replacement Revolving Lenders and the Replacement Term Loans made by the Additional Replacement Term Lenders to the proposed Closing Date specifying its objection theretorepayment of all Loans which have not been designated for conversion pursuant to Section 4.01.
Appears in 1 contract
Conditions of Effectiveness. This Agreement shall become effective if, on or before September 18December 15, 20182014, all of the following conditions precedent have been met:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the tothe Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the BorrowerBorrower (provided that each Term Note with respect to the Term Loan may be delivered on the first Term Loan Draw Date if such date is not also the Closing Date);
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank, provided that those certificates containing restrictive legends unacceptable to the Administrative Agent as of the Closing Date shall be replaced and re-issued by each Subsidiary without such restrictive legends and delivered to Administrative Agent accompanied by undated stock powers executed in blank within 30 days of the Closing Date or such later date consented to by Administrative Agent (and such certificates replaced will be returned to the Borrower by Administrative Agent or its counsel); and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June September 30, 2018 2014 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable, and, to the extent requested by the Administrative Agent, each other jurisdiction where such Person is qualified to do business;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the BorrowerBorrower and its Subsidiaries, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a4.03(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, (x) have a Material Adverse EffectEffect or (y) result in a material adverse change in or have a material adverse effect upon the prospects of the Borrower or the Borrower and its Subsidiaries taken as a whole, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect Effect, (D) a calculation of the financial covenants in Section 7.11 as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date and (DE) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement and the delivery by Bank of America, N.A., to Borrower (with a copy provide to Administrative Agent) of a reasonably satisfactory payoff letter concerning the proceeds same and termination of the initial Loans funded hereunder and the termination of all commitments thereunderExisting Credit Agreement;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Agreement First Amendment shall become effective if, on or before September 18, 2018, all of the first date (the "First Amendment Effective Date") upon which the Agent shall have received evidence satisfactory to it that the following conditions precedent have been metsatisfied:
(a) The Administrative Borrower shall have paid all accrued expenses of the Agent (including the reasonable fees and expenses of counsel to the Agent's receipt ).
(b) The Merger Agreement shall be in full force and effect, without any waiver or amendment to which the Agent or the Required Lenders shall have objected within a reasonable period after being notified of such waiver or amendment.
(c) FN Escrow shall have issued the New Debt.
(d) The Agent shall have received on or before the First Amendment Effective Date the following, each of which shall be originals, "pdfs" dated on or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing First Amendment Effective Date) and each , in form and substance reasonably satisfactory to the Administrative Agent (unless otherwise specified) and in sufficient copies for each of the LendersLender:
(i) counterparts to this First Amendment duly executed counterparts of this Agreementby the Borrower, sufficient in number for distribution to Mafco, First Gibraltar, the Administrative Agent, each Lender Required Lenders and the BorrowerAgent;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender counterparts to the Consent attached hereto duly executed by each Loan Party other than the Borrower, Mafco and First Gibraltar;
(iii) a pledge agreement, in substantially the form certificate signed by a duly authorized officer of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together withMafco stating that:
(A) After giving effect to this First Amendment, the representations and warranties contained in each of the Loan Documents are correct on and as of the First Amendment Effective Date, except to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred such representations and warranties specifically relate to therein accompanied by undated stock powers executed in blankan earlier date; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after After giving effect to the financing hereunder and each Loan to be advanced on the Closing Datethis First Amendment, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event has occurred and is continuing which constitutes an Event of Default or circumstance since would constitute an Event of Default but for the date of the Audited Financial Statements requirement that has had notice be given or could be reasonably expected to, either individually time elapse or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paidboth.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Agreement Amendment shall become effective as of the first date (the “Amendment Effective Date”) on which, and only if, on or before September 18, 2018, all each of the following conditions precedent shall have been metsatisfied:
(a) The Administrative Agent's receipt Except as otherwise set forth in the letter agreement dated as of the followingdate hereof among the Borrowers and the Administrative Agent (the “Amendment Post-Closing Letter Agreement”), the Administrative Agent shall have received on or before the date hereof, each of which shall be originals, "pdfs" or telecopies dated such day (followed promptly by originals) unless otherwise specified), each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent (unless otherwise specified) and (except for the items specified in clauses (iii) and (iv) below) in sufficient copies for each of the LendersLender:
(i) executed counterparts Counterparts of this AgreementAmendment executed by the Borrowers and each Lender or, sufficient in number for distribution as to any of the Lenders, advice satisfactory to the Administrative Agent, each Agent that such Lender and the Borrower;has executed this Amendment.
(ii) a Revolving Credit Note and a Term Note for each requesting Lender The consent attached hereto (the “Consent”) executed by each of the Borrower;Guarantors.
(iii) A Note payable to each Lender requesting the same in a pledge agreementprincipal amount equal to such Lender’s respective Commitment as of the Amendment Effective Date.
(iv) Completed requests for information, dated on or before the date hereof, listing all effective financing statements (or equivalent filings) filed in substantially the form of Exhibit E (jurisdictions that the Administrative Agent may deem necessary or desirable that name any Loan Party as debtor, together with each copies of such other pledge agreement supplement delivered in connection therewithfinancing statements, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of that all other actions, recordings and filings of or with respect to the Pledge Agreement actions that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
have been taken (iv) such certificates including, without limitation, receipt of resolutions duly executed payoff letters and UCC termination statements (or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;equivalent filings)).
(v) Borrower shall have delivered Certified copies of the resolutions of the Board of Directors (or equivalent body), general partner or managing member, as applicable, of each Loan Party and of each general partner or managing member (if any) of each Loan Party approving the transactions contemplated by this Amendment, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;transactions under this Amendment.
(vi) certificates as A copy of a recent date certificate of the good standing Secretary of Borrower and each Subsidiary whose equity securities are subject to State (or equivalent authority (if any)) of the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation of each Loan Party and of each general partner or managing member (if any) of each Loan Party, dated reasonably near the Closing Date, certifying, if and to the extent such certification is generally available for entities of the type of such Loan Party, (A) as to a true and complete copy of the charter, certificate of limited partnership, limited liability company agreement or equivalent)other organizational document of such Loan Party, general partner or managing member, as the case may be, and each amendment thereto on file in such Secretary’s office and (B) that (1) such amendments are the only amendments to the charter, certificate of limited partnership, limited liability company agreement or other organizational document, as applicable;, of such Loan Party, general partner or managing member, as the case may be, on file in such Secretary’s office and (2) to the extent available, such Loan Party, general partner or managing member, as the case may be, has paid all franchise taxes to the date of such certificate and (C) such Loan Party, general partner or managing member, as the case may be, is duly incorporated, organized or formed and in good standing (if a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) or presently subsisting under the laws of the jurisdiction of its incorporation, organization or formation.
(vii) written notice by Borrower designating A copy of a deposit account acceptable to Administrative Agent into certificate of the Secretary of State (or equivalent authority (if any)) of each jurisdiction in which any Loan Party or any general partner or managing member of a Loan Party owns or leases property or in which the proceeds conduct of Loans are its business requires it to qualify or be disbursed;
(viii) licensed as a favorable opinion of Sidley Austin LLP, counsel foreign corporation except where the failure to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event so qualify or circumstance since the date of the Audited Financial Statements that has had or could be licensed would not be reasonably expected to, either individually or in the aggregate, likely to have a Material Adverse Effect, dated reasonably near (but prior to) the Amendment Effective Date, stating, with respect to each such Loan Party, general partner or managing member, that such Loan Party, general partner or managing member, as the case may be, is duly qualified and in good standing (if a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) as a foreign corporation, limited partnership or limited liability company in such State and has filed all annual reports required to be filed to the date of such certificate.
(viii) A certificate of each Loan Party and of each general partner or managing member (if any) of each Loan Party, signed on behalf of such Loan Party, general partner or managing member, as applicable, by its President, a Vice President and its Secretary or any Assistant Secretary or, with respect to Loan Parties that are Foreign Subsidiaries, any authorized signatory (or those of its general partner or managing member, if applicable), dated the Amendment Effective Date (the statements made in which certificate shall be true on and as of the date hereof), certifying as to (A) the absence of any amendments to the constitutive documents of such Loan Party, general partner or managing member, as applicable, since the date of the certificate referred to in Section 4(a)(vi), (B) a true and complete copy of the bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of such Loan Party, general partner or managing member, as applicable, as in effect on the date on which the resolutions referred to in Section 4(a)(v) were adopted and on the date hereof, (C) the due incorporation, organization or formation and good standing (if a concept of good standing exists under the laws of the jurisdiction of the incorporation, organization or formation of such Loan Party) or valid existence of such Loan Party, general partner or managing member, as applicable, as a corporation, limited liability company or partnership organized under the laws of the jurisdiction of its incorporation, organization or formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party, general partner or managing member, as applicable, (D) the accuracy in all material respects of the representations and warranties contained in the Loan Documents as though made on and as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which such representations and warranties shall be true and correct in all material respects on or as of such earlier date) and (E) the absence of any event occurring and continuing, or resulting from the Borrowings, if any, as of the date hereof, that constitutes a Default.
(ix) A certificate of the Secretary or an Assistant Secretary of each Loan Party or, with respect to Loan Parties that are Foreign Subsidiaries, any authorized signatory (or Responsible Officer of the general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers or other authorized signatories of such Loan Party, or of the general partner or managing member of such Loan Party, authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder.
(x) The audited Consolidated annual financial statements for the year ending December 31, 2012 of the Parent Guarantor and interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available (or, in the event the Lenders’ due diligence review reveals material changes since such financial statements, as of a later date within 45 days of the day hereof).
(xi) An opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, in form and substance satisfactory to the Administrative Agent.
(xii) An opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, relating to the Initial French Borrower, in form and substance satisfactory to the Administrative Agent.
(xiii) An opinion of ▇▇▇▇▇▇▇ LLP, Maryland counsel for the Loan Parties, in form and substance satisfactory to the Administrative Agent.
(xiv) An opinion of TSMP Law Corporation, Singapore counsel for the Loan Parties, in form and substance satisfactory to the Administrative Agent.
(xv) An opinion of ▇▇▇▇▇▇▇ ▇▇▇, Solicitors, Ireland counsel for the Loan Parties, in form and substance satisfactory to the Administrative Agent.
(xvi) An opinion of Loyens & Loeff, Avocats à la Cour, Luxembourg and Dutch counsel for the Loan Parties, in form and substance satisfactory to the Administrative Agent.
(xvii) An opinion of Shearman & Sterling LLP, counsel for the Administrative Agent, in form and substance satisfactory to the Administrative Agent.
(xviii) One or more Notices of Borrowing, each dated not later than the applicable Notice of Borrowing Deadline and specifying the date hereof as the date of the proposed Borrowing or Borrowings.
(xix) An Unencumbered Assets Certificate prepared on a pro forma basis to account for any acquisitions, dispositions or reclassifications of Assets, and the incurrence or repayment of any Debt for Borrowed Money relating to such Assets, that have occurred since June 30, 2013.
(xx) The Amendment Post-Closing Letter Agreement executed by the Borrowers, in form and substance satisfactory to the Administrative Agent.
(xxi) A letter from the Initial Process Agent addressed to the Administrative Agent confirming its agreement to act as the Initial Process Agent for the purposes of Section 9.12(c) of the Existing Term Loan Agreement.
(b) The Lenders shall be satisfied with any change to the corporate and legal structure of any Loan Party or any Subsidiary thereof occurring after December 31, 2012, including any changes to the terms and conditions of the charter and bylaws, memorandum and articles of association, operating agreement, partnership agreement or other governing document of any Loan Party occurring after December 31, 2012.
(c) Before and after giving effect to the transactions contemplated by this Amendment, there is shall have occurred no material adverse change in the business or financial condition of the Parent Guarantor and its Subsidiaries taken as a whole since December 31, 2012.
(d) There shall exist no action, suit, investigation investigation, litigation or proceeding affecting any Loan Party or any of its Subsidiaries pending or, to the knowledge of the Borrower, or threatened in writing in any court or before any court, governmental agency or arbitrator or Governmental Authority that (i) would be reasonably be expected likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated thereby and hereby.
(De) that no consents, licenses or All material governmental and third party consents and approvals are required necessary in connection with the consummation transactions contemplated by this Amendment shall have been obtained (without the Borrower imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the transaction Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby by this Amendment or the other Loan Documents.
(f) The representations and the execution, delivery and performance by the Borrower and the validity against the Borrower warranties set forth in each of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax be true and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests correct in all assets material respects on and as of the BorrowerAmendment Effective Date, indicating among other things that the assets before and after giving effect to this Amendment, as though made on and as of each the Borrower are not subject to any Liens such date (except for Liens permitted under this Agreementany such representation and warranty that, by its terms, refers to a specific date other than the Amendment Effective Date, in which case as of such specific date); and.
(xig) substantially concurrent payoff in full No event shall have occurred and be continuing, or shall result from the effectiveness of all outstanding obligations under the Existing Credit Agreement with the proceeds this Amendment, that constitutes a Default or an Event of the initial Loans funded hereunder and the termination of all commitments thereunder;Default.
(bh) All fees required to be The Borrowers shall have paid to the Administrative Agent Agent, for the ratable account of those Lenders under the Existing Term Loan Agreement as in effect prior to the date hereof which consent to this Amendment on or before prior to the Closing Amendment Effective Date, an amendment fee in an amount equal to 0.15% of such consenting Lender’s Commitment outstanding (including, for the avoidance of doubt, any funded Commitment) immediately prior to the Amendment Effective Date.
(i) All of the accrued fees of the Administrative Agent and the Lenders and all reasonable expenses of the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have been paid and all fees required in full. The effectiveness of this Amendment is conditioned upon the accuracy of the factual matters described herein. This Amendment is subject to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of Section 9.01 of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoExisting Term Loan Agreement.
Appears in 1 contract
Conditions of Effectiveness. This Agreement shall become effective ifThird Amendment and the amendments and consent provided herein, on or before September 18, 2018, all are subject to the satisfaction of the following conditions precedent have been metprecedent:
(a) The Administrative Agent's receipt of Agent shall have received the following, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each as of the LendersThird Amendment Effective Date and in sufficient executed originals for each Lender:
(i1) executed counterparts of this AgreementThird Amendment, sufficient in number for distribution to the Administrative Agent, each Lender duly completed and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower, each Guarantor, the Agent and each Required Lender;
(iii2) a pledge agreement, the PXRE Bermuda Credit Enhancement Policy in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement")A attached hereto, duly completed and executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created therebyPXRE Bermuda;
(iv3) the Group Guarantee in the form of Exhibit B attached hereto, duly completed and executed by PXRE Group;
(4) the favorable opinion of Conyers Dill & Pearman, counsel to PXRE Group and P▇▇▇ ▇▇▇m▇▇▇, in ▇▇▇▇ ▇easonably satisfactory to the Agent and substantially covering such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower opinion matters as the Administrative Agent may reasonably require evidencing request.
(b) The Agent shall have received a certificate, signed by the identity, authority and capacity president or chief financial officer of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificateCredit Party, in form and substance reasonably satisfactory to the Administrative Agent, certifying that (i) all representations and warranties of such Credit Party contained in this Third Amendment, the Existing Credit Agreement (subject to the updating of the representations and warranties therein pursuant to this Third Amendment) and the other Credit Documents are true and correct as of the Third Amendment Effective Date, both immediately before and after giving effect to the consummation of the transactions contemplated hereby, (ii) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the consummation of the transactions contemplated hereby, (iii) both immediately before and after giving effect to the consummation of the transactions contemplated hereby, no Material Adverse Change has occurred since December 31, 2001, and there exists no event, condition or state of facts that could reasonably be expected to result in a Material Adverse Change, (iv) that the articles or certificate of incorporation of such Credit Party, as the case may be, have not been amended, revised or restated since the date of the Second Amendment, and (v) that the bylaws, operating agreement or memorandum and articles of association, as applicable, of such Credit Party, as the case may be, have not been amended, revised or restated since the date of the Second Amendment.
(c) The Agent shall have received certificates of the secretary, clerk or director, as applicable, or an assistant secretary, clerk or director, as applicable, of each Credit Party, in form and substance satisfactory to the Agent and dated as of the Third Amendment Effective Date, certifying (i) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or duly authorized committee thereof) of such Credit Party authorizing the execution, delivery and performance of this Third Amendment, and (ii) as to the incumbency and genuineness of the signature of each officer of such Credit Party executing this Third Amendment.
(d) The Agent shall have received a certificate of the secretary, clerk or director, as applicable, or an assistant secretary, clerk or director, as applicable, of PXRE Bermuda, in form and substance satisfactory to the Agent and dated no earlier than thirty (30) days prior to the Third Amendment Effective Date, certifying (i) that attached thereto is a true and complete copy of the articles or certificate of incorporation and all amendments thereto of PXRE Bermuda, certified, to the extent applicable, as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction or organization, and that the same has not been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the bylaws, operating agreement or memorandum and articles of association, as applicable, of PXRE Bermuda, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate, (iii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or duly authorized committee thereof) of PXRE Bermuda authorizing the execution, delivery and performance of the PXRE Bermuda Credit Enhancement Policy, and (iv) as to the incumbency and genuineness of the signature of each officer of PXRE Bermuda executing the PXRE Bermuda Credit Enhancement Policy.
(e) PXRE Bermuda shall have duly complied with and performed all of its agreements and conditions set forth in the PXRE Bermuda Credit Enhancement Policy required to be complied with or performed by it on or prior to the Third Amendment Effective Date and the Agent shall have received evidence satisfactory to it that premium due thereunder shall have been paid in full by PXRE Group.
(f) The Agent shall have received a Covenant Compliance Worksheet, duly completed and certified as accurate by the chief financial officer or treasurer of PXRE Group and the Borrower and in form and substance satisfactory to the Agent, demonstrating PXRE Group's and Borrower's compliance with the financial covenants set forth in Sections 6.1 through 6.4, that (A) determined on a pro forma basis as of September 30, 2002, after giving effect to the financing hereunder and each Loan to be advanced on consummation of the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;transaction contemplated hereby.
(vig) certificates The Lenders shall have received a certificate as of a recent date of the good standing or existence of Borrower PXRE Bermuda under the law of its state or country of organization.
(h) All approvals, permits and each Subsidiary whose equity securities consents of any Governmental Authorities or other Person required in connection with the execution and delivery of this Third Amendment, the PXRE Credit Enhancement Policy and the consummation of the transactions contemplated hereby shall have been obtained (without the imposition of conditions that are subject not reasonably acceptable to the Pledge Agreement under Agent and the laws of its jurisdiction of incorporation, organization or formation (or equivalentRequired Lenders), and all related filings, if any, shall have been made, and all such approvals, permits, consents and filings shall be in full force and effect and the Agent shall have received such copies thereof as applicable;
(vii) written notice it shall have requested; all applicable waiting periods shall have expired without any adverse action being taken by Borrower designating a deposit account acceptable any Governmental Authority having jurisdiction; and no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before, and no order, injunction or decree shall have been entered by, any court or other Governmental Authority, in each case to Administrative Agent into which enjoin, restrain or prohibit, to obtain substantial damages in respect of, or that is otherwise related to or arises out of, this Third Amendment, the proceeds PXRE Credit Enhancement Policy or the consummation of Loans are to be disbursed;
(viii) a favorable the transactions contemplated hereby, or that, in the opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedLenders, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could would otherwise be reasonably expected to, either individually or in the aggregate, likely to have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(di) The Borrower shall have delivered paid the fee that is due and payable under that certain letter between the Agent and Borrower dated October 2, 2002 (the "Third Amendment Fee Letter"), together with all other fees and expenses of the Agent and the Lenders required hereunder or thereunder or under any other Credit Document to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days be paid on or prior to the Closing Date. Without limiting Third Amendment Effective Date (including the generality reasonable fees and expenses of U.S. and Bermuda counsel to the Agent) in connection with this Third Amendment and the transactions contemplated hereby.
(j) Each of the provisions representations and warranties contained in the Existing Credit Agreement, this Third Amendment and the other Credit Documents shall be true and correct on and as of the last paragraph of Section 10.03, for purposes of determining compliance Third Amendment Effective Date with the conditions specified same effect as if made on and as of such date, both immediately before and after giving effect to the consummation of the transactions contemplated hereby, except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in this Section 4.01which case such representation or warranty shall be true and correct as of such date.
(k) No Default or Event of Default shall have occurred and be continuing, both immediately before and after giving effect to the consummation of the transactions contemplated hereby.
(l) The Agent and each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to other documents, certificates, opinions and instruments in connection with the proposed Closing Date specifying its objection theretoPXRE Bermuda Credit Enhancement Policy, the Group Guarantee and this Third Amendment as it shall have reasonably requested.
Appears in 1 contract
Sources: Credit Agreement (Pxre Group LTD)
Conditions of Effectiveness. This Agreement Amendment shall become effective if, on or before September 18, 2018, all as of the following conditions precedent have been met:
(a) The Administrative Agent's receipt of the following, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agentfirst above written when, and certified as accurate by the chief financial officer of Borroweronly when, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received counterparts of this Amendment executed by Holdings and the results Required Lenders or, as to any of a Lien search the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment; and Section 1 of this Amendment shall become effective when and only when the Administrative Agent shall have received (a) the fees specified in Section 2 hereof, and payment of all other accrued fees and expenses of the Administrative Agent (including a search as the reasonable accrued fees and expenses of counsel to judgmentsthe Administrative Agent invoiced on or prior to the date hereof) and (b) all of the following documents, bankruptcy, tax and intellectual property matters in its discretioneach such document dated the date of receipt thereof by the Administrative Agent (unless otherwise specified), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent:
(i) Counterparts of the Consent appended hereto (the "Consent"), executed by each of the Loan Parties (other than Holdings);
(ii) Certified copies of (A) the resolutions of the Board of Directors of (1) Holdings approving this Amendment and the matters contemplated hereby and (2) each other Loan Party evidencing approval of the Consent and (B) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and all other matters contemplated hereby;
(iii) A certificate signed by a duly authorized officer of Holdings stating that: (A) the representations and warranties contained in Section 5 hereof and in the Loan Documents are true and correct on and as of the date of such certificate as though made on and as of such date other than any such representations or warranties that, by their terms, refer to a date other than the date of such certificate, and any Lender requesting the same, (B) no event has occurred and is continuing that constitutes a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoDefault.
Appears in 1 contract
Sources: Credit Agreement (Alpharma Inc)
Conditions of Effectiveness. This Agreement Amendment shall become effective and be deemed effective as of the date hereof (the "Amendment Effective Date") if, on or before September 18and only if, 2018, all each of the following conditions precedent shall have been metsatisfied:
(a) SECTION 3.1. The Administrative Agent's receipt of the following, each of which Agent shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
have received (i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), Amendment duly executed by the Borrower and any applicable Subsidiarythe Lenders, together with:
(ii) each of the other documents listed on the List of Closing Documents attached hereto as Exhibit A) to , in each case in form and substance satisfactory the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
and (Biii) such evidence other documents as the Agent or any Lender may reasonably request.
SECTION 3.2. The Agent shall have received from the Borrower (i) an amendment fee equal to 0.25% of the completion Aggregate Commitment under the Credit Agreement as amended hereby for the ratable account of the Lenders in accordance with their respective Commitments under the Credit Agreement as amended hereby, (ii) all other actions, recordings and filings of or accrued Facility Fee under the Credit Agreement to but not including the Amendment Effective Date with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers Commitments of the Borrower as lenders under the Administrative Agent may reasonably require evidencing Credit Agreement, other than the identityLenders party hereto, authority and capacity (iii) all other fees and other amounts due and payable on or prior to the Amendment Effective Date, including, to the extent invoiced, payment or reimbursement of each Responsible Officer thereof authorized all expenses required to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which be paid or reimbursed by the Borrower is a party under the Credit Agreement, either before or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paidAmendment.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Agreement Amendment shall become effective as of the first date (the “Amendment Effective Date”) on which, and only if, on or before September 18, 2018, all each of the following conditions precedent shall have been met:satisfied (or waived by the Required Lenders):
(a) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent's receipt , counterparts of this Amendment executed by each of the followingLoan Parties, the Lenders collectively comprising at least the Required Lenders (in their capacities as Lenders and, if applicable, as Swap Counterparties) and the Administrative Agent.
(b) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, a Joinder Agreement to the Subsidiary Guaranty executed by each Loan Party identified as a New Guarantor on Schedule 1 attached hereto.
(c) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, counterparts of the Intercreditor Agreement executed by each of the parties party thereto.
(d) The Borrower and certain of its Subsidiaries shall have (i) executed and delivered the Pledge Agreement, (ii) made all filings necessary or desirable in order to perfect and protect the first priority liens and security interests created in the Collateral (as defined in the Pledge Agreement) and (iii) delivered to the Collateral Agent certificated securities of each applicable Issuer (as defined in the Pledge Agreement), if any, together with any applicable share powers delivered in blank.
(e) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, an amendment to each of the JPM Credit Agreement, the Existing KeyBank Credit Agreement, the ▇▇▇▇▇ Fargo Credit Agreement and the PNC Bank Credit Agreement, it being understood that, in each case, any such amendment that is in substantially the same form as this Amendment or otherwise substantially consistent with the summary of amendment terms previously approved by the Administrative Agent shall be deemed satisfactory.
(f) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Amendment Effective Date) of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Borrower and the other Loan Parties and ▇▇▇▇▇▇▇ LLP, special Maryland counsel to the Company, in each case, in form and substance reasonably acceptable to the Administrative Agent and covering such other matters relating to the Loan Parties and this Amendment as the Required Lenders shall reasonably request. The Borrower hereby requests such counsel to deliver such opinion.
(g) The Administrative Agent shall have received the following items from the Borrower:
(i) Certificates of good standing for each Loan Party from the states of organization of such Loan Party, certified by the appropriate governmental officer and dated not more than thirty (30) days prior to the Amendment Effective Date;
(ii) Copies of the formation documents of each Loan Party certified by an officer of such Loan Party, together with all amendments thereto;
(iii) Incumbency certificates, executed by officers of each Loan Party, which shall be originals, "pdfs" or telecopies identify by name and title and bear the signature of the Persons authorized to sign the Loan Documents on behalf of such Loan Party (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated and to make borrowings and request other extensions of credit hereunder on behalf of the Closing Date (orBorrower, in the case of certificates of governmental officialsthe Borrower), a recent date before the Closing Date) and each in form and substance reasonably satisfactory to upon which certificate the Administrative Agent and each the Lenders shall be entitled to rely until informed of the Lenders:
(i) executed counterparts of this Agreement, sufficient any change in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed writing by the Borrower;
(iiiiv) Copies, certified by a pledge agreementSecretary or an Assistant Secretary of each Loan Party of the resolutions (and resolutions of other bodies, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed if any are reasonably deemed necessary by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in counsel for the Administrative Agent's possession) authorizing the transactions contemplated by this Amendment, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) be executed and delivered by the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement)Loan Parties; and
(xiv) substantially concurrent payoff in full UCC financing statement, judgment, and tax lien searches with respect to each Loan Party from its state of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;organization.
(bi) All The fees required to be paid to provided for in Section 5, (ii) any fees separately agreed by the Administrative Agent on or before and the Closing Date shall have been paid Borrower, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agentiii) to the extent invoiced to the Borrower at least one (1) Business Day prior to the Closing Amendment Effective Date, plus such additional amounts all of such fees, charges the reasonable out-of-pocket expenses of the Administrative Agent (including the reasonable fees and disbursements as shall constitute its reasonable estimate expenses of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling one firm of accounts between the Borrower and counsel for the Administrative Agent)) due and payable on the Amendment Effective Date shall have been paid in full.
(di) The Borrower Administrative Agent and each Lender shall have delivered to received all documentation and other information about the Loan Parties as shall have been reasonably requested by the Administrative Agent, and any Agent or such Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting Amendment Effective Date that it shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the generality of Patriot Act to the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved extent requested by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender at least five (5) Business Days prior to the proposed Closing Date specifying its objection theretoAmendment Effective Date.
Appears in 1 contract
Conditions of Effectiveness. This Agreement Amendment shall become effective as of the first date (the “Amendment Effective Date”) on which, and only if, on or before September 18, 2018, all each of the following conditions precedent shall have been met:satisfied (or waived by the Required Lenders):
(a) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent's receipt , counterparts of this Amendment executed by each of the followingLoan Parties, the Lenders collectively comprising at least the Required Lenders (in their capacities as Lenders and, if applicable, as Swap Counterparties) and the Administrative Agent.
(b) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, a Joinder Agreement to the Subsidiary Guaranty executed by each Loan Party identified as a New Guarantor on Schedule 1 attached hereto.
(c) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, counterparts of the Intercreditor Agreement executed by each of the parties party thereto.
(d) The Borrower and certain of its Subsidiaries shall have (i) executed and delivered the Pledge Agreement, (ii) made all filings necessary or desirable in order to perfect and protect the first priority liens and security interests created in the Collateral (as defined in the Pledge Agreement) and (iii) delivered to the Collateral Agent certificated securities of each applicable Issuer (as defined in the Pledge Agreement), if any, together with any applicable share powers delivered in blank.
(e) The Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent, an amendment to each of the KeyBank 2015 Credit Agreement, the KeyBank 2017 Credit Agreement, the ▇▇▇▇▇ Fargo Credit Agreement and the PNC Bank Credit Agreement, it being understood that, in each case, any such amendment that is in substantially the same form as this Amendment or otherwise substantially consistent with the summary of amendment terms previously approved by the Administrative Agent shall be deemed satisfactory.
(f) The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Amendment Effective Date) of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Borrower and the other Loan Parties and ▇▇▇▇▇▇▇ LLP, special Maryland counsel to the Company, in each case, in form and substance reasonably acceptable to the Administrative Agent and covering such other matters relating to the Loan Parties and this Amendment as the Required Lenders shall reasonably request. The Borrower hereby requests such counsel to deliver such opinion.
(g) The Administrative Agent shall have received the following items from the Borrower:
(i) Certificates of good standing for each Loan Party from the states of organization of such Loan Party, certified by the appropriate governmental officer and dated not more than thirty (30) days prior to the Amendment Effective Date;
(ii) Copies of the formation documents of each Loan Party certified by an officer of such Loan Party, together with all amendments thereto;
(iii) Incumbency certificates, executed by officers of each Loan Party, which shall be originals, "pdfs" or telecopies identify by name and title and bear the signature of the Persons authorized to sign the Loan Documents on behalf of such Loan Party (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated and to make borrowings and request other extensions of credit hereunder on behalf of the Closing Date (orBorrower, in the case of certificates of governmental officialsthe Borrower), a recent date before the Closing Date) and each in form and substance reasonably satisfactory to upon which certificate the Administrative Agent and each the Lenders shall be entitled to rely until informed of the Lenders:
(i) executed counterparts of this Agreement, sufficient any change in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed writing by the Borrower;
(iiiiv) Copies, certified by a pledge agreementSecretary or an Assistant Secretary of each Loan Party of the resolutions (and resolutions of other bodies, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed if any are reasonably deemed necessary by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in counsel for the Administrative Agent's possession) authorizing the transactions contemplated by this Amendment, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) be executed and delivered by the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement)Loan Parties; and
(xiv) substantially concurrent payoff in full UCC financing statement, judgment, and tax lien searches with respect to each Loan Party from its state of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;organization.
(bi) All The fees required to be paid to provided for in Section 5, (ii) any fees separately agreed by the Administrative Agent on or before and the Closing Date shall have been paid Borrower, and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agentiii) to the extent invoiced to the Borrower at least one (1) Business Day prior to the Closing Amendment Effective Date, plus such additional amounts all of such fees, charges the reasonable out-of-pocket expenses of the Administrative Agent (including the reasonable fees and disbursements as shall constitute its reasonable estimate expenses of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling one firm of accounts between the Borrower and counsel for the Administrative Agent)) due and payable on the Amendment Effective Date shall have been paid in full.
(di) The Borrower Administrative Agent and each Lender shall have delivered to received all documentation and other information about the Loan Parties as shall have been reasonably requested by the Administrative Agent, and any Agent or such Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting Amendment Effective Date that it shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the generality of Patriot Act to the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved extent requested by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender at least five (5) Business Days prior to the proposed Closing Date specifying its objection theretoAmendment Effective Date.
Appears in 1 contract
Sources: Revolving Credit Agreement (Xenia Hotels & Resorts, Inc.)
Conditions of Effectiveness. 2.1 This Agreement Amendment shall become effective ifas of the date (the “Effective Date”) when, on or before September 18and only when, 2018, all each of the following conditions precedent shall have been metsatisfied:
(a) The Administrative Agent's receipt of the following, each of which Agent shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly have received an executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and counterpart hereof from each of the Credit Parties and the Lenders party hereto (which Lenders shall constitute the Required Lenders:).
(ib) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the The Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent received a certificate, signed by the president, chief executive officer or chief financial officer of Crawford, dated the Effective Date and in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, certifying that (Ai) after giving effect all representations and warranties of the Credit Parties contained in this Amendment, the Credit Agreement and the other Credit Documents qualified as to materiality shall be true and correct and those not so qualified shall be true and correct in all material respects, in each case as of the Effective Date (except to the financing hereunder and each Loan extent any such representation or warranty is expressly stated to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates have been made as of a recent date specific date, in which case such representation or warranty shall be true and correct as of the good standing such date); (ii) no Default or Event of Borrower Default has occurred and each Subsidiary whose equity securities are subject is continuing; (iii) no Material Adverse Effect has occurred since December 31, 2014, and there exists no event, condition or state of facts that could reasonably be expected to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified result in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, ; and (Civ) that there is no action, suit, investigation or proceeding pending or, all conditions to the knowledge effectiveness of the Borrower, threatened this Amendment set forth in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall Section 2.1 have been paid and all fees satisfied or waived as required to be paid to the Lenders on or before the Closing Date shall have been paidhereunder.
(c) Unless waived by the Administrative Agent, the Borrower Crawford shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to fees set forth in the letter agreement executed by the Administrative Agent (directly to such counsel if requested by or any Affiliate thereof and Crawford in connection with this Amendment and all reasonable expenses of the Administrative Agent) to Agent and its Affiliates required under Section 11.1 of the extent Credit Agreement invoiced one (1) Business Day on or prior to the Closing DateEffective Date (including reasonable fees and expenses of counsel) in connection with this Amendment, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower other Credit Documents and the Administrative Agent)transactions contemplated hereby.
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Crawford & Co)
Conditions of Effectiveness. This The effectiveness of this Agreement shall become effective if, on or before September 18, 2018, all and obligation of each Lender to make Revolving Loans hereunder is subject to satisfaction of the following conditions precedent have been metprecedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals, "pdfs" e-mail copies (in a .pdf format) or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible OfficerOfficer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerREIT;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender duly executed by the BorrowerBorrowers in favor of each Lender requesting a Note;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge and Security Agreement"), duly executed by the Borrower and any applicable Subsidiaryeach Loan Party, together with:
(A) to certificates or instruments representing the extent not already Certificated Securities (as defined in the Administrative Agent's possession, certificates representing the pledged equity referred to therein Pledge and Security Agreement) accompanied by undated stock all endorsements and/or powers executed in blank; andrequired by the Pledge and Security Agreement,
(B) acknowledgment copies or stamped receipt copies of proper financing statements, duly filed under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge and Security Agreement, covering the Collateral described in the Pledge and Security Agreement,
(C) completed requests for information listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(D) evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge and Security Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby,
(E) Control Agreements with respect to each Borrowing Base Account of a Loan Party, duly executed by each of the parties thereto,
(F) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge and Security Agreement have been taken (including receipt of duly executed payoff letters and UCC-3 terminations, if any); and
(G) a Perfection Certificate, in substantially the form of Exhibit H-1, duly executed by each of the Loan Parties;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party or is to be a party;
(v) Borrower shall have delivered to such documents and certifications as the Administrative Agent a certificatemay reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in form good standing and substance reasonably satisfactory qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, extent that (A) after giving effect failure to the financing hereunder and each Loan do so could not reasonably be expected to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIIIhave a Material Adverse Effect;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Borrower Loan Parties and the Loan Documents as the Required Lenders Administrative Agent may reasonably request;
(ixvii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of the Borrower (x) certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, satisfied and (B) that there has been no event not occurred a material adverse change in the business, assets or circumstance since the date financial condition of any of the Audited Financial Statements that has had Borrowers, Guarantors or could be reasonably expected toany of their respective Subsidiaries, either individually or any of the entities in which they have invested directly or indirectly, or in the aggregatefacts and information regarding any such entities as heretofore disclosed to the Administrative Agent and the Lenders and (y) attaching copies of the operating agreements, have partnership agreements or other applicable organizational documents of (A) each Affiliated Investor in which all or a Material Adverse Effectportion of its Equity Interests are owned directly by a Loan Party, (B) Colony Funds Sants and (C) Coral Partners;
(ix) evidence that there all insurance required to be maintained pursuant to the Loan Documents has been obtained and is no in effect;
(x) a Borrowing Base Certificate, as of the Closing Date;
(xi) completion of all due diligence with respect to the Borrowers, Guarantors, Affiliated Investors, Investment Assets and Collateral in scope and determination satisfactory to the Administrative Agent and Lenders in their sole discretion, including a sampling review of the credit and legal files of the Borrowers, the Guarantors and the Affiliated Investors, review of financial statements and projections, review of governance provisions and review of each Borrower’s underwriting criteria and closing processes as well as its on-going valuation and monitoring methodologies, and other items that Administrative Agent may request;
(xii) the absence of any action, suit, investigation or proceeding proceeding, pending oror threatened, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority governmental authority that would reasonably be expected purports to materially affect any of the Loan Parties, any of their respective Subsidiaries, any Affiliated Investor that has an Investment Asset included in the Borrowing Base or whose Equity Interests are owned (in whole or in part) directly by a Loan Party, or any transaction contemplated hereby, or that could have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower material adverse effect on any of the Loan Parties, or any of their respective Subsidiaries, or any Affiliated Investor that has an Investment Asset included in the Borrowing Base or whose Equity Interests are owned (in whole or in part) directly by a Loan Party, or any transaction contemplated hereby and or on the execution, delivery and performance by the Borrower and the validity against the Borrower ability of any of the Borrowers or Guarantors to perform its obligations under the Loan Documents to which it is a partyDocuments;
(xxiii) the completion of a review and verification, by an independent consultant engaged by the Lenders, of the accuracy and reliability of the REIT’s calculation and reporting of the book value and Cash Income of the Initial Eligible Investment Assets, which review and verification shall be in form, scope and substance satisfactory to the Administrative Agent shall have received and the results of Lenders;
(xiv) a Lien search Solvency Certificate from the Loan Parties demonstrating that each Loan Party is Solvent;
(including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against xv) the Borrower under the Uniform Commercial Code (or applicable judicial docket) as in effect in Management Subordination Agreement; duly executed by each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement)parties thereto; and
(xixvi) substantially concurrent payoff in full of all outstanding obligations under such other assurances, certificates, documents, consents or opinions as the Existing Credit Agreement with Administrative Agent or the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;Required Lenders reasonably may require.
(b) All Any fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent and BAS (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Borrowers and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.039.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of this Agreement shall become effective if, on or before September 18, 2018, all is subject to satisfaction of the following conditions precedent have been metprecedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originalsoriginal, "pdfs" or e-mail (in a .pdf format) or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible OfficerOfficer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerBorrowers;
(ii) a Revolving Credit Note, a Term A Note and a Term Note for B Note, in each requesting Lender case executed by the BorrowerBorrowers and made to the order of the Administrative Agent;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiaryeach Loan Party, together with:
(A) certificates or instruments, if any, representing the Certificated Securities (as defined in the Pledge Agreement), if any, accompanied by all endorsements and/or powers required by the Pledge Agreement,
(B) proper financing statements, to be filed under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge Agreement, covering the Collateral described in the Pledge Agreement,
(C) completed requests for information listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements,
(D) a Perfection Certificate, in substantially the form of Exhibit M-1, duly executed by each of the Loan Parties;
(iv) the Assigned Empire State Mortgage, duly executed by each Loan Party party thereto, together with:
(A) all documents, instruments and agreements evidencing, securing or relating to the extent Existing Empire State Mortgage Debt, including, without limitation, (1) a copy of all promissory notes and loan agreements evidencing the Existing Empire State Mortgage Debt and (2) a copy of the Existing Empire State Mortgage, showing all recording information thereon, in each case certified as true, correct and complete by an Authorized Officer of the Parent;
(B) a copy of an environmental assessment report on the Empire State Building;
(C) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination confirming that the Empire State Building is not already located in an area identified by the Administrative Agent's possession, certificates representing Federal Emergency Management Agency (or any successor agency) as a Special Flood Hazard Area with respect to which flood insurance has been made available under the pledged equity referred to therein accompanied by undated stock powers executed National Flood Insurance Act of 1968 (as now or hereafter in blankeffect or successor act thereto); and
(BD) such other documents, agreements and instruments as the Administrative Agent may reasonably request relating to the Empire State Building, the Existing Empire State Mortgage Debt or the Existing Empire State Mortgage.
(v) evidence of the completion of that all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created therebyunder the Pledge Agreement have been taken (including receipt of duly executed payoff letters and UCC-3 terminations, if any);
(ivvi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party or is to be a party;
(vvii) Borrower shall have delivered to such documents and certifications as the Administrative Agent a certificatemay reasonably require to evidence that each Loan Party is duly organized or formed, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing DateParty is validly existing, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of Borrower and each Subsidiary whose equity securities are subject properties or the conduct of its business requires such qualification, except to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating extent that failure to do so could not reasonably be expected to have a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursedMaterial Adverse Effect;
(viii) a favorable opinion of Sidley Austin Fried, Frank, Harris, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Borrower Loan Parties and the Loan Documents as the Required Lenders Administrative Agent may reasonably request;
(ix) a favorable opinion of ▇▇▇▇▇▇▇ LLP, local counsel to the Loan Parties in Maryland, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(x) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xi) a certificate signed by a Responsible Officer of the each Borrower (x) certifying that (A1) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding is pending or, to the knowledge of the Borrowerany Loan Party, threatened in writing in any court or before any arbitrator or Governmental Authority that would (A) challenges the validity or enforceability of this Agreement, any other Loan Document or any of the transactions contemplated hereby or thereby, or otherwise purports to restrict or prohibit the performance of all or any portion of this Agreement, any other Loan Document or any of the transactions contemplated hereby or thereby or (B) could reasonably be expected to have a Material Adverse Effect and (D2) that no consents, licenses or approvals are required in connection with since the consummation by the Borrower date of the transaction contemplated hereby Audited Financial Statements, there has not occurred any event or condition that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect and (y) attaching copies of the executionoperating agreements, delivery partnership agreements or other applicable organizational documents of each Person whose Equity Interests are included in the Collateral, which organizational documents shall, in the reasonable opinion of the Administrative Agent, permit the Administrative Agent to realize on such Collateral upon the occurrence and performance during the continuance of an Event of Default;
(xii) an Availability Certificate duly certified by a Responsible Officer of each Borrower;
(xiii) a Solvency Certificate from the Borrower Parent certifying that, after giving effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date), the Parent and the validity against the Borrower of its Subsidiaries on a consolidated basis are Solvent;
(xiv) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect (and the amount, types and terms and conditions of all such insurance shall be satisfactory to which it is a partythe Administrative Agent), together with the certificates of insurance and endorsements, naming the Administrative Agent, on behalf of the Secured Parties, as an additional insured under each policy of liability insurance maintained with respect to each Initial Borrowing Base Property;
(xxv) the financial statements referenced in Sections 5.05(a) and (b);
(xvi) a certificate executed by a Responsible Officer of the Parent calculating the ratio of Total Indebtedness to Total Asset Value as of the Closing Date (giving pro forma effect to the transactions to occur on the Closing Date, including, without limitation, all Credit Extensions to occur on the Closing Date)(such certificate, the “Pro Forma Closing Date Leverage Certificate”);
(b) An Initial Public Offering by the Parent shall have consummated with Net Cash Proceeds received by the Parent in respect thereof in an amount not less than $600,000,000, and at least three (3) Business Days prior to the consummation of such Initial Public Offering, the Administrative and the Lenders shall have received written notice from the Parent (A) setting forth the date on which such Initial Public Offering will be consummated (the “IPO Effective Date”) and (B) requesting that the Term Lenders fund their Term Commitments on the IPO Effective Date in accordance with, and for the purposes set forth in, Section 2.01(a).
(c) The total outstanding principal amount of the Existing Empire State Mortgage Debt (and all accrued and unpaid interest thereof) shall not exceed the aggregate amount of the Term A Commitments of all Term A Lenders as of the Closing Date and the Administrative Agent shall have received each of the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion)following documents, in form and substance reasonably satisfactory thereto, made against to the Borrower under the Uniform Commercial Code Administrative Agent:2
(or applicable judicial docketA) as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets an assignment of the BorrowerExisting Empire State Mortgage Debt, indicating among other things that duly executed and delivered by the assets Existing Empire State Mortgage Lender;
(B) the originals of each outstanding promissory note evidencing the Borrower are not subject Existing Empire State Mortgage Debt, duly endorsed to any Liens (except for Liens permitted under this Agreement)the Administrative Agent; and
(xiC) substantially concurrent payoff in full an assignment of all outstanding obligations under the Existing Credit Agreement with Empire State Mortgage, duly executed by the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;Existing Empire State Mortgage Lender.
(bd) (i) All fees required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(ce) Unless waived by the Administrative Agent, the Borrower Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1which invoice may be in summary form) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Borrowers and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Agreement shall become effective if, on or before September 18, 2018, as of the first date (the “Second Amendment Effective Date”) that all of the following conditions precedent shall have been metsatisfied:
(a) 3.1 The Administrative Agent's ’s receipt of the following, each of which shall be originals, "pdfs" e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originalsoriginals to the extent set forth below or otherwise requested by the Administrative Agent) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) specified and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(ia) executed counterparts of this Agreement, sufficient in such number for distribution to as requested by the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable SubsidiaryBorrower, together with:
(A) to the extent not already in Parent, the Administrative Agent's possessionGuarantors, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;and Lenders constituting Required Lenders.
(ivb) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party or is to be a party;
(vc) Borrower shall have delivered to such documents and certifications as the Administrative Agent a certificatemay reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in form good standing and substance reasonably satisfactory qualified to the Administrative Agent, and certified as accurate by the chief financial officer engage in business in its jurisdiction of Borrower, that organization;
(d) favorable opinions of (A) after giving effect Kleinberg, Kaplan, W▇▇▇▇ & C▇▇▇▇, P.C., special New York counsel to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, Parties and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin B▇▇▇▇▇ ▇▇▇▇▇▇ LLP, Delaware counsel to the BorrowerLoan Parties, each addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Borrower Loan Parties, this Agreement and the other Loan Documents as the Required Lenders Administrative Agent may reasonably request;; and
(ixe) a certificate signed by of a Responsible Officer of the Borrower certifying to the effect that (Ai) that the conditions specified in Sections 4.02(a) 3.2 and 3.3 have been satisfied and (bii) no event has occurred and is continuing which constitutes a Default.
3.2 After giving effect to this Agreement, the representations and warranties contained in Section 4 are correct on and as of the Second Amendment Effective Date, as though made on and as of such date other than any such representations or warranties that, by their terms, refer to another date, in which case such representations and warranties shall have been satisfiedcorrect as of such other date.
3.3 Since August 31, (B) that 2019, there has been no Material Adverse Change (excluding any event or circumstance since resulting from the date COVID-19 pandemic to the extent such event or circumstance has been publicly disclosed by the Borrower in its securities filings or disclosed in writing by the Borrower to the Administrative Agent and the Lenders prior to the Second Amendment Effective Date, and the scope of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there such adverse effect is no actiongreater than that which has been disclosed).
3.4 The Administrative Agent and each Lender shall have received all documentation and other information that the Administrative Agent or such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, suitincluding the U.S. Patriot Act, investigation or proceeding pending orand the Beneficial Ownership Regulation, in each case, to the knowledge of extent requested at least five Business Days prior to the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;Second Amendment Effective Date.
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject 3.5 Any fees owed to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees Lender or Arranger required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Second Amendment Effective Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Agreement Amendment shall become effective ifas of the date first above written when, on or before September 18and only when, 2018the Agent shall have received counterparts of this Amendment executed by the Borrower and all of the Lenders or, as to any of the Lenders, advice satisfactory to the Agent that such Lender has executed this Amendment, and the consent, as attached hereto, of each of the Subsidiary Guarantors (the “Consent”). This Amendment is subject to the provisions of Section 8.01 of the Credit Agreement, and Section 1 hereof shall become effective when, and only when, the Agent shall have additionally received all of the following conditions precedent have been metdocuments, each such document (unless otherwise specified) dated the date of receipt thereof by the Agent (unless otherwise specified) and in sufficient copies for each Lender, in form and substance satisfactory to the Agent (unless otherwise specified) and in sufficient copies for each Lender:
(a) The Administrative Agent's receipt Copies of the following(A) resolutions of the Board of Directors and/or Shareholders of each Loan Party approving this Amendment, (B) the current by-laws (estatutos sociales) of each Loan Party as in effect on the date the resolutions specified in clause (A) were adopted, (C) a power of which shall attorney authorizing the relevant officers of each Loan Party to execute this Amendment and any other document pertaining to the same and (D) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment and the Consent and a certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the absence of any change or amendment to the by-laws (estatutos sociales) of each Loan Party since the date the resolutions specified in clause (A) were adopted.
(b) A certificate of the Secretary or an Assistant Secretary of each Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign this Amendment and the other documents to be originals, "pdfs" delivered hereunder.
(c) Evidence that all fees and expenses of the Agent (including the fees and expenses of counsel to the Agent) in connection with the execution of this Amendment have been or telecopies will be promptly paid by the Borrower.
(followed promptly by originalsd) unless otherwise specified, each properly executed A certificate signed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each duly authorized officer of the LendersBorrower stating that:
(i) executed counterparts The representations and warranties contained in Section 4 below are correct on and as of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender date of such certificate as though made on and the Borrower;as of such date; and
(ii) No event has occurred and is continuing that constitutes a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paidDefault.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Nii Holdings Inc)
Conditions of Effectiveness. This Agreement Amendment shall become effective if, on or before September 18, 2018, all and as of the first Business Day when the following conditions precedent have been met:satisfied or waived in writing (the “Effective Date”):
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals, "pdfs" or telecopies electronic transmissions (followed promptly by originals) unless otherwise specifiedspecified in writing by the Administrative Agent to the Borrower, each properly executed by a Responsible OfficerOfficer of the applicable signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lendersits legal counsel:
(i) executed counterparts of this AgreementAmendment duly executed by Parent, sufficient in number for distribution to Borrower and the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender counterparts of this Amendment duly executed by Lenders constituting no less than the BorrowerRequired Lenders;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower Loan Parties as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;Amendment; and
(viv) Borrower shall have delivered to such documents and certifications as the Administrative Agent a certificatemay reasonably require to evidence that each of the Loan Parties is duly organized or formed, and that each of the Loan Parties is validly existing and in form good standing.
(b) The representations and substance reasonably satisfactory warranties of the Borrower and each other Loan Party contained in Article III of the Credit Agreement or any other Loan Document shall be true and correct in all material respects on and as of the Effective Date; provided that, to the Administrative Agentextent that such representations and warranties specifically refer to an earlier date, they shall be true and certified correct in all material respects as accurate by the chief financial officer of Borrowersuch earlier date; provided, further, that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (Bany qualification therein) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent respects on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paidsuch respective dates.
(c) Unless waived by the Administrative AgentNo Default or Event of Default shall exist, or would result from, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements consummation of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)Amendment.
(d) The Borrower shall have delivered Administrative Agent’s receipt of reasonably satisfactory evidence that all fees, including the Consent Fee, and expenses required to be paid hereunder and/or pursuant to the Administrative Agent, and any Lender requesting Credit Agreement have been paid in full in cash or will be paid in full in cash on the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Effective Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: First Lien Credit Agreement (El Pollo Loco Holdings, Inc.)
Conditions of Effectiveness. This Agreement Amendment shall become effective if, on or before September 18, 2018, all (the "Effective Date") as of the following conditions precedent have been metdate first above written when, and only when:
(a) The Administrative Agent's receipt of the following, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received (i) counterparts of this Amendment executed by the results Borrower and (A) with respect to the amendments set forth in Section 1(a) of a Lien search this Amendment, each Tranche B Term Loan Lender and the Required Lenders, (including a search B) with respect to the amendment set forth in Section l(d) of this Amendment, the Required Prepayment Lenders and the Required Lenders and (C) with respect to the amendments set forth in Sections 1(b), 1(c), 1(e), 1(f), 1(g), 1(h), 1(i), 1(j), 1(k), 1(l) and 1(m) of this Amendment, the Required Lenders or, as to judgmentsany of such Lenders, bankruptcyadvice satisfactory to the Administrative Agent that such Lender has executed this Amendment and (ii) the Consent attached hereto executed by each Guarantor and each Grantor (other than the Borrower) under the Guarantee and Collateral Agreement.
(b) the Administrative Agent shall have additionally received all of the following documents, tax each such document (unless otherwise specified) dated the date of receipt thereof by the Administrative Agent (unless otherwise specified) and intellectual property matters in its discretion)sufficient copies for each Lender, in form and substance reasonably satisfactory thereto, made against to the Administrative Agent (unless otherwise specified) and in sufficient copies for each Lender:
(i) A certificate of the Secretary or an Assistant Secretary of the Borrower under certifying 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 evidence or perfect security interests in all assets names and true signatures of the Borrower, indicating among other things that the assets officers of each the Borrower are not subject authorized to any Liens (except for Liens permitted under sign this Agreement)Amendment and the other documents to be delivered hereunder and thereunder; and
(xiii) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds A certificate signed by a duly authorized officer of the initial Loans funded hereunder and the termination of all commitments thereunder;Borrower stating that:
(bA) All fees required The representations and warranties contained in the Loan Documents and in Section 3 hereof are correct on and as of the date of such certificate as though made on and as of such date, except where such representation and warranty is expressly made as of a specific earlier date, in which case such representation and warranty shall be true as of such earlier date; and
(B) No event has occurred and is continuing that constitutes a Default or Event of Default as of the Effective Date after giving effect to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paidthis Amendment.
(c) Unless waived by All of the accrued fees and expenses of the Administrative AgentAgent and the Lenders (including the accrued fees and expenses of counsel for the Administrative Agent in connection with this Amendment and for other work since the Closing Date), shall have been paid in full.
(d) With respect to the amendments set forth in Section 1(a) of this Amendment, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any for the pro rata benefit of each Tranche B Term Loan Lender requesting the samethat executes this Amendment, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior Tranche B Term Loan Facility amendment fee equal to the Closing Date. Without limiting the generality 1.00% of the provisions sum of the last paragraph outstanding principal amount of Section 10.03the Tranche B Term Loans held by such Tranche B Term Loan Lender, for purposes as of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoEffective Date.
Appears in 1 contract
Sources: Credit Agreement (Perkinelmer Inc)
Conditions of Effectiveness. This Agreement Amendment shall become effective ifas of the first date (such date being referred to as the “Amendment No. 2 Effective Date”, on or before September 18which date is March 12, 2018, all 2015) when each of the following conditions precedent shall have been metsatisfied:
(a) The Administrative Agent shall have received counterparts of this Amendment duly executed and delivered by (A) the Borrower, (B) the MLP, (C) the Consenting Lender and (D) the Administrative Agent's receipt .
(b) The Administrative Agent shall have received, on behalf of itself and the Lenders, an opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel to the Credit Parties, dated as of the followingAmendment No. 2 Effective Date and addressed to the Administrative Agent and the Consenting Lender, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Administrative Agent and each of the Lenders:
shall have received (i) executed counterparts certificates of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
good standing (ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in such concept exists) from the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence applicable secretary of state of the completion state of all other actionsorganization of each Credit Party, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Credit Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement Amendment and the other Loan Documents to which the Borrower is a party or is to be a party;
(vii) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to dated as of the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Amendment No. 2 Effective Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that Borrower, confirming satisfaction of the conditions specified set forth in Sections 4.02(a2(e) and (bf) have been satisfied, of this Amendment.
(Bd) that there has been no event or circumstance since the date Payment of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, all reasonable fees and expenses due to the knowledge of Administrative Agent and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the “Arranger”) (as agreed to in writing between the Administrative Agent and/or the Arranger and the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect ).
(e) The representations and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower warranties of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower each other Credit Party contained in Section 8 of the Loan Documents Credit Agreement or any other Credit Document shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Amendment No. 2 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which it case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is a party;already qualified by materiality) as of such earlier date.
(xf) No Default or Event of Default exists, or would result from the effectiveness of this Amendment.
(g) The Administrative Agent shall have received from the results Borrower a consent fee payable for the account of the Consenting Lender, in an amount equal to 0.25% of the aggregate principal amount of Commitments held by the Consenting Lender as of the Amendment No. 2 Effective Date.
(h) With respect to any parcel of improved Mortgaged Property, a Lien search completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination (including together with a search notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each applicable Credit Party) together with a copy of, or a certificate as to judgmentscoverage under, bankruptcyand a declaration page relating to, tax the insurance policies required by Section 9.03 of the Credit Agreement (including, without limitation, flood insurance policies) and intellectual property matters in its discretionthe applicable provisions of the Security Documents, each of which (i) shall be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payee or mortgagee endorsement (as applicable), (ii) shall name the Collateral Agent, on behalf of the Guaranteed Creditors, as additional insured, (iii) in the case of flood insurance, shall (a) identify the addresses of each property located in a special flood hazard, (b) indicate the applicable flood zone designation, the flood insurance coverage for buildings and contents and the deductible relating thereto and (c) provide that the insurer will give the Collateral Agent 45 days’ written notice of cancellation or non-renewal if permitted by applicable law and (iv) shall be otherwise in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender ; provided that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to acknowledges that the proposed Closing Date specifying its objection theretorequirements of this clause (i) were satisfied on March 12, 2015.
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of this Agreement shall become effective if, and the obligation of the L/C Issuer and each Lender to make the initial Credit Extensions hereunder on or before September 18, 2018, all the Closing Date are subject to satisfaction of the following conditions precedent have been metprecedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals, "pdfs" or e-mail (in a .pdf format) or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible OfficerOfficer or a duly authorized officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement and the Guaranty Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender duly executed by the BorrowerBorrower in favor of each Lender requesting a Note;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiaryeach Loan Party that is a party thereto, together with:
(A) to certificates or instruments representing the extent not already Certificated Securities (as defined in the Administrative Agent's possession, certificates representing the pledged equity referred to therein Pledge Agreement) accompanied by undated stock all endorsements and/or powers executed in blank; andrequired by the Pledge Agreement,
(B) such evidence of that all proper financing statements have been or contemporaneously therewith will be duly filed under the completion Uniform Commercial Code of all other actions, recordings and filings of or with respect to the Pledge Agreement jurisdictions that the Administrative Agent reasonably may deem reasonably necessary or reasonably desirable in order to perfect the Liens created therebyunder the Pledge Agreement, covering the Collateral described in the Pledge Agreement,
(C) completed requests for information listing all effective financing statements filed in the jurisdictions referred to in clause (B) above that name any Loan Party as debtor, together with copies of such other financing statements, and
(D) evidence that all other actions, recordings and filings that the Administrative Agent reasonably may deem necessary or desirable in order to perfect the Liens created under the Pledge Agreement have been taken (including receipt of duly executed payoff letters and UCC-3 terminations, if any);
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party or is to be a party;
(v) Borrower shall have delivered to such documents and certifications as the Administrative Agent a certificatemay reasonably require to evidence that each Loan Party is duly organized or formed, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIIIexpected to have a Material Adverse Effect;
(vi) certificates as favorable opinions of a recent date of the good standing of Borrower ▇▇▇▇▇▇▇▇ Chance US LLP and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin ▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Borrower Loan Parties and the Loan Documents as the Required Lenders Administrative Agent may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Corporate Property Associates 16 Global Inc)
Conditions of Effectiveness. This Agreement Amendment shall become effective ifwhen, on or before September 18and only when, 2018(a) the Agent shall have received counterparts of this Amendment executed by each of the parties hereto, (b) all accrued but unpaid interest, fees and expenses under the terms of the Revolving Credit Agreement, as amended hereby, and all outstanding fees and expenses of counsel to the Agent and the Lenders, shall have been paid in full to the extent due and payable after giving effect to this Amendment, (c) the Agent additionally shall have received all of the following conditions precedent have been met:
(a) The Administrative Agent's receipt of the followingdocuments, each (unless otherwise indicated) being dated the date of receipt thereof by the Agent (which date shall be originalsthe same for all such documents), "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts Copies of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
all documents evidencing all requisite corporate action of each Dravo Party (B) such evidence including any and all resolutions of the completion Board of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity Directors of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(vDravo Party) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and authorizing the execution, delivery and performance by the Borrower of this Amendment and the validity against the Borrower of the Loan Documents matters contemplated hereby and thereby, and (B) all documents evidencing all Governmental Approvals, if any, with respect to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder Amendment and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid matters contemplated hereby and all fees required to be paid to the Lenders on or before the Closing Date shall have been paidthereby.
(cii) Unless waived by A certificate of the Administrative Agent, Secretary or an Assistant Secretary of each Dravo Party certifying the Borrower shall have paid all reasonable names and documented out-of-pocket fees, charges and disbursements true signatures of one primary counsel the officers authorized to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts sign this Amendment on behalf of such fees, charges Dravo Party and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or any other documents to be incurred delivered by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)Dravo Party hereunder.
(diii) The Borrower shall have delivered to Such other documents, instruments, approvals (and, if required by the Administrative Agent, and certified duplicates of executed copies thereof) or opinions as the Agent or any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretomay reasonably request.
Appears in 1 contract
Sources: Amendment Agreement (Dravo Corp)
Conditions of Effectiveness. This Agreement Amendment shall become effective ifas of the first date (such date being referred to as the “Effective Date”) when each of the following conditions shall have been satisfied (it being understood, on or before September 18for the avoidance of doubt, 2018, that the amendments to effect the Term B Loan Extension shall become effective upon satisfaction of all the following conditions applicable thereto (the “Extension Effective Time”) and the amendments to effect the Term B Loan Increase shall become effective upon satisfaction of all of the following conditions precedent have been met:applicable thereto (the “Incremental Effective Time”)):
(a) The Administrative Agent (or its counsel) shall have received counterparts of this Amendment signed by (i) the Parent Borrower, the Guarantors, the Administrative Agent's receipt of the following, each of which shall be originals, "pdfs" or telecopies and (followed promptly by originalsii) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, A) in the case of certificates of governmental officialsthe Term B Loan Extension, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender Extended Maturity Term B-1 Dollar Lenders and the Borrower;
(ii) a Revolving Credit Note and a Extended Maturity Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreementB-1 Euro Lenders, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence in the case of the completion Term B Loan Increase, the Incremental Term B-1 Euro Lenders and (C) in the case of all other actionsthe amendments of the Existing Credit Agreement made pursuant to Section 10.01, recordings and filings the Required Lenders.
(b) The Administrative Agent shall have received (x) the legal opinion of or with respect Ropes & ▇▇▇▇ LLP, counsel to the Pledge Agreement that Loan Parties and (y) the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates legal opinion of resolutions or other actionSmith, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identityAnderson, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered Blount, Dorsett, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, L.L.P., North Carolina counsel to the Administrative Agent a certificateLoan Parties, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by .
(c) The Administrative Agent shall have received (i) copies of each Organization Document for the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Parent Borrower and each Subsidiary thereof is each SolventGuarantor, and (B) attached thereto are calculations evidencing compliance as of June 30applicable, 2018 with and, to the covenants contained in Article VIII;
(vi) certificates extent applicable, certified as of a recent date by the appropriate governmental official, each dated the Effective Date or a recent date prior thereto; (ii) signature and incumbency certificates of the good standing officers of the Parent Borrower and each Subsidiary whose equity securities are subject to Guarantor executing this Amendment; (iii) resolutions of the Pledge Agreement under Board of Directors or similar governing body of the laws the Parent Borrower and each Guarantor approving and authorizing the execution, delivery and performance of this Amendment and certified as of the Effective Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment and (iv) if available, a good standing certificate from the applicable Governmental Authority of the Parent Borrower’s and each Guarantor’s jurisdiction of incorporation, organization or formation (or equivalent)formation, as applicable;each dated a recent date prior to the Effective Date.
(viid) written notice by Borrower designating a deposit account acceptable to The Administrative Agent into which and the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed Amendment No. 1 Lead Arrangers shall have been paid all fees payable to the Administrative Agent and each Lenderthe Amendment No. 1 Lead Arrangers, respectively, on the Effective Date and, to the extent invoiced at least three (3) Business Days prior to the Effective Date (or as otherwise reasonably agreed by the Parent Borrower), out-of-pocket expenses required to customary matters concerning be paid by the Parent Borrower in connection with this Amendment, including the Attorney Costs of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, in accordance with Section 10.04 of the Existing Credit Agreement.
(e) The Administrative Agent shall have received an officer’s certificate with respect to the Parent Borrower and the Loan Documents Guarantors in form and substance reasonably satisfactory to the Administrative Agent as to satisfaction of the Required Lenders may reasonably request;conditions set forth in clauses (n) and (o) of this Section 5.
(ixf) The Administrative Agent shall have received a certificate signed Note executed by the Parent Borrower in favor of each Extended Maturity Term B-1 Lender and Incremental Term B-1 Euro Lender requesting a Note, if any.
(g) [Reserved.]
(h) The Administrative Agent shall have received a notice of prepayment pursuant to Section 2.05(a)(i) of the Existing Credit Agreement with respect to the Non-Extending Term B Dollar Loans and Non-Extending Term B Euro Loans, in accordance with the terms of the Existing Credit Agreement.
(i) Each of the Non-Extending Term B Dollar Loan Prepayment and the Non-Extending Term B Euro Loan Prepayment shall have occurred at or substantially concurrently with the Extension Effective Time and the Incremental Effective Time.
(j) The Administrative Agent shall have received a Committed Loan Notice with respect to the Incremental Term B-1 Euro Loans no later than 12:00 p.m. on the Business Day that is three (3) Business Days prior to the Effective Date.
(k) The Administrative Agent shall have received a Solvency Certificate from a Responsible Officer of the Parent Borrower certifying (A) that in substantially the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;form attached hereto as Annex C.
(xl) the The Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower under searches of the Uniform Commercial Code filings (or applicable judicial docketequivalent filings) as made with respect to the Parent Borrower and each Guarantor in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets state of formation of such Person, together with copies of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens financing statements (except for Liens permitted under this Agreement); and
(xior similar documents) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paiddisclosed by such search.
(cm) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent At least three (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (53) Business Days prior to the Closing Effective Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender all documentation and other information required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act that has been requested in writing at least ten (10) Business Days prior to the proposed Closing Effective Date.
(n) The representations and warranties of each Loan Party set forth in Article V of the Credit Agreement and in each other Credit Document shall be true and correct in all material respects on and as of the Effective Date, except to the extent such representations and warranties specifically relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(o) Immediately after giving effect to this Amendment and the making of the Incremental Term B-1 Euro Loans on the Effective Date specifying its objection theretoas contemplated by this Amendment, no Default or Event of Default exists.
Appears in 1 contract
Conditions of Effectiveness. This Agreement The Commitments of each Lender hereunder shall become be effective if, on or before September 18, 2018, all upon satisfaction of the following conditions precedent have been met:
precedent: Unless waived by all the Lenders (aor by the Arranger and the Administrative Agent with respect to matters or items specified in clause (v) The or (vi) below with respect to which the Borrower has given assurances satisfactory to the Arranger and the Administrative Agent that such items shall be delivered promptly following the Closing Date), the Administrative Agent's receipt of the following, each of which shall be originals, "pdfs" originals or telecopies facsimiles (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible OfficerOfficer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Arranger, the Administrative Agent and each of the Lenders:
(i) : except as otherwise specified in Section 6.15, executed counterparts of this Agreement, the Pledge Agreement, the Guaranty, the Interco Subordination Agreement and the Intercreditor Agreement, in each case, sufficient in number for distribution to the Arranger, the Administrative Agent, each Lender Agent and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly ; Notes executed by the Borrower and any applicable Subsidiaryin favor of each Lender requesting such a Note, together with:
(A) each in a principal amount equal to such Lender's Commitment; [Reserved]; except as otherwise specified in Section 6.15, evidence satisfactory to the extent not already Administrative Agent that the Lien granted to the Collateral Agent for the benefit of the Lenders in the Administrative Agent's possession, certificates representing collateral described in the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
Pledge Agreement is a perfected security interest (B) such evidence of the completion of all other actions, recordings and filings of or except that with respect to the Pledge Agreement pledge of any Capital Stock of First Tier Foreign Subsidiaries, perfected to the extent that the Administrative Agent may deem reasonably necessary or reasonably desirable Uniform Commercial Code in order the relevant jurisdiction is applicable) in each case subject to perfect nonconsensual Permitted Liens; and no Lien (other than nonconsensual Permitted Liens) exists on any such collateral described above other than the Liens Lien created thereby;
(iv) in favor of the Collateral Agent, for the benefit of the Lenders, pursuant to the Loan Documents and the Lenders under the 364-Day Credit Agreement; such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may reasonably require evidencing to establish the identity, identities of and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party or is to be a party;
(v) Borrower shall have delivered to ; such evidence as the Administrative Agent a certificatemay reasonably require to verify the due organization or formation, in form good standing and substance reasonably satisfactory qualification to do business with respect to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIIIother Loan Party;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Solectron Corp)
Conditions of Effectiveness. This Agreement Amendment shall become effective as of the first date (the “Amendment Effective Date”) on which, and only if, on or before September 18, 2018, all each of the following conditions precedent shall have been metsatisfied:
(a) The Administrative Agent's receipt of the followingAgent shall have received, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(ix) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender Amendment executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order and those Lenders comprising Required Lenders or, as to perfect the Liens created thereby;
(iv) any of such certificates of resolutions or other actionLenders, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered advice satisfactory to the Administrative Agent a certificatethat such Lender has executed this Amendment, and (y) the consent attached hereto (the “Consent”) executed by each of the Guarantors.
(b) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer counterparts of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject an amendment to the Pledge Agreement under executed by each of the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;parties thereto.
(viic) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the The Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion)received, in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly a) a certificate of each Loan Party and of each general partner or managing member thereof certifying as to such counsel if requested the matters required by the Administrative Agentcertificate described in Section 3.01(a)(viii) of the Existing Credit Agreement, in each case as of the Amendment Effective Date, (b) a certificate of the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan Party, or of the general partner or managing member of such Loan Party, authorized to sign this Amendment and each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder and (c) certified copies of the resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by this Amendment and each Loan Document contemplated hereby to which it or such Loan Party is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the extent invoiced one (1) Business Day prior transactions under the Loan Documents and each Loan Document to the Closing Date, plus which it or such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred Loan Party is or is to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)party.
(d) The Borrower Administrative Agent shall have delivered received, in form and substance satisfactory to the Administrative Agent, (i) an amendment of the Revolving Credit Agreement and any Lender requesting (ii) an amendment to the same, a Beneficial Ownership Certification5 Year Term Loan Agreement, in each case at least five modifying the underlying agreement to account for the terms herein and making certain other corresponding modifications.
(5e) Business Days prior to (i) the Closing Date. Without limiting the generality fees provided for in Section 10 and (ii) all of the provisions reasonable out-of-pocket expenses of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretobeen paid in full.
Appears in 1 contract
Conditions of Effectiveness. This Agreement Amendment shall become effective as of the date hereof if, on or before September 18and only if, 2018, all of the following conditions precedent Agent shall have been metreceived:
(a) The Administrative Agent's receipt executed copies of this Amendment from the following, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent Borrower and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(iib) executed copies of any Notes requested by a Revolving Lender pursuant to Section 2.13 of the Credit Note and a Term Note for Agreement in connection with this Amendment payable to the order of each such requesting Lender executed by the BorrowerLender;
(iiic) a pledge agreement, executed copies of the Reaffirmation attached hereto in substantially the form of Exhibit E A (the “Reaffirmation”) from each existing Guarantor and Pledgor;
(d) copies of the articles or certificate of incorporation (or comparable constituent document) of each Loan Party, together with all amendments, and a certificate of good standing, each other pledge agreement supplement delivered certified by the appropriate governmental officer in connection therewithits jurisdiction of incorporation or organization;
(e) copies, in certified by the Secretary or Assistant Secretary of each case Loan Party, of its by-laws (or comparable governing document) and resolutions of its board of directors (or comparable governing body) authorizing the execution of this Amendment or the Reaffirmation, as amendedapplicable;
(f) an incumbency certificate, the "Pledge Agreement"), duly executed by the Borrower Secretary or Assistant Secretary of each Loan Party, which shall identify by name and any applicable Subsidiarytitle and bear the signatures of the officers of such Loan Party authorized to sign this Amendment or the Reaffirmation, together with:as applicable;
(Ag) a written opinion of the Loan Parties’ counsel, addressed to the extent not already in Lenders and the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory acceptable to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vih) certificates such documentation as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject Agent shall have reasonably requested to reaffirm the liens granted under the German-law pledge agreement executed by Engineered Solutions L.P. with respect to the Pledge Agreement under the laws capital stock of its jurisdiction of incorporation, organization or formation (or equivalent), as applicableEnerpac GmbH;
(viii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are all fees (if any) agreed to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning paid by the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement)Amendment; and
(xij) substantially concurrent payoff in full of all outstanding obligations under such other instruments and documents as the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoreasonably requested in connection with this Amendment.
Appears in 1 contract
Sources: Credit Agreement (Actuant Corp)
Conditions of Effectiveness. 1. This Agreement Amendment shall become effective ifeffective, on or before September 18and shall be dated, 2018, all as of the following conditions precedent date that the Agent shall have been met:
received (ai) The Administrative Agent's receipt counterparts of the following, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly this Amendment executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementBorrower, sufficient in number for distribution to the Administrative Guarantors, the Required Lenders and the Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form an opinion of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by counsel to the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificateGuarantors, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (Aiii) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees and documented out-of-pocket fees, charges and disbursements of one primary counsel expenses owed to the Administrative Agent, the Lenders and Special Counsel which have been accrued and/or incurred up to and including the date hereof.
2. The Consents granted under Paragraph 1 of Article III hereof shall become effective as of the dates (each, a "Consent Effective Date") that the Agent (directly to such counsel if requested by the Administrative Agent) shall have received, in form and substance satisfactory to the extent invoiced one (1Agent, the items required pursuant to Sections 8.3(f) Business Day prior and 8.12 of the Credit Agreement in respect of the Pending Acquisitions. Notwithstanding anything to the Closing Datecontrary in the foregoing sentence, plus such additional amounts it is agreed that the pledge and delivery of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or any Capital Stock required pursuant to said sections may be incurred by it through made to the Agent within fifteen (15) days after the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions related Acquisition. To the extent that the Acquisition of LSDHL consists of foreign assets or creates a foreign Subsidiary, the documentation executed with respect to a security interest therein and/or a guaranty therefrom, as required by Sections 8.3(f) and 8.12(c) of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Credit Agreement shall be deemed such that the rights and obligations of the various parties created thereunder are substantially equivalent to have consented tothose which would be created by execution of the Supplements to the Guaranty and the Security Agreement with respect to a domestic Subsidiary or domestic assets, approved or accepted with such changes as may be required by the Agent or to comply with laws governing such foreign transactions. The requirements of Sections 8.3(f) and 8.12(c) of the Credit Agreement will be satisfied with, each document or other matter required thereunder to be consented to or approved deemed met by or acceptable or the delivery of such documentation in form and substance satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying and its objection theretocounsel.
Appears in 1 contract
Conditions of Effectiveness. This Agreement (a) Conditions Precedent to Closing Date. No Lender shall become effective ifbe required or obligated on the Closing Date to make any Advance, and no Issuing Bank shall be required or obligated to make L/C Credit Extensions, in each case until the first Business Day on or before September 18, 2018, all of which the following conditions precedent have been met:satisfied (or waived, as evidenced by an “effective date” notice to the Borrower from each Issuing Bank and the Administrative Agent), as determined by each Lender and each such Issuing Bank (provided that if the Closing Date does not occur on or before May 31, 2006, the Commitments of the Lender Parties shall terminate on such date):
(ai) The Administrative Agent's ’s receipt of the following, each of which shall be originals, "pdfs" originals or telecopies facsimiles (followed promptly by originals) (unless otherwise specified), each properly executed by a Responsible OfficerOfficer of the Borrower, each dated the date of the Initial Borrowing (the “Closing Date Date”) (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Lender Parties (unless otherwise specified) and in sufficient copies for each Agent and the Borrower (unless otherwise specified):
(a) five (5) executed counterparts of this Agreement; 61 AESC Amended and Restated Credit Agreement
(b) to the extent requested, duly executed Notes of the Borrower for the account of each Lender that has so requested complying with the provisions of Section 2.14;
(c) a security agreement in substantially the form of Exhibit D hereto (the “Security Agreement”), duly executed by the Borrower, together with:
(i) proper financing statements, duly completed for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or reasonably desirable in order to perfect and protect the liens and security interests created under the Collateral Documents in favor of the Secured Parties, covering the Collateral described in the Collateral Documents;
(ii) results of lien searches, dated on or no earlier than 45 days before the Closing Date, for existing financing statements filed in the jurisdictions referred to in Section 3.01(a)(iii)(A) that name the Borrower as debtor, together with copies of all such financing statements; and
(iii) evidence that all other action that the Administrative Agent may deem necessary or desirable in order to perfect and protect the Liens and security interests in favor of the Secured Parties created under the Security Agreement and the Account Control Agreements (both before and after giving effect to the Closing Date Transactions), other than the Other Perfection Requirements, has been taken;
(d) an amendment to each Amended and Restated Mortgage (in recordable form and otherwise in form and substance satisfactory to the Administrative Agent) (collectively, the “Amendments”), duly executed and delivered by the Borrower, so as to create or ensure the continued effectiveness of the Liens created thereby, all as determined by the Administrative Agent and its counsel, together with:
(i) confirmation from Chicago Title Insurance Company or such other title insurers acceptable to the Administrative Agent recording the Amendments that duly executed counterparts of such Amendments that are sufficient for recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create or continue valid and subsisting Liens on the property described therein in favor of the Collateral Agent for the benefit of the Secured Parties have been delivered to Chicago Title Insurance Company or such other title insurer, and evidence reasonably satisfactory to the Administrative Agent that all filing and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender recording taxes and the Borrowerfees have been paid;
(ii) a Revolving Credit Note and a Term Note fully paid “date down” endorsement to each Mortgage Policy for each requesting Lender executed the properties encumbered by the Borrower;Amended and Restated Mortgages, as amended 62 AESC Amended and Restated Credit Agreement by the Amendments, in form and substance acceptable to the Administrative Agent, dated the Closing Date and issued by Chicago Title Insurance Company, which (1) states, among other things, that since the effective date of the applicable Mortgage Policy, there have been no changes in the state of title, including no new Liens that do not constitute Permitted Encumbrances (as defined in the applicable Amended and Restated Mortgage, as amended by the Amendment thereto) and (2) shall reduce the liability amounts under the Mortgage Policies to an amount equal to $500,000,000 in the aggregate, which amount shall be allocated among the Mortgage Policies as determined by the Administrative Agent.
(iii) at the Administrative Agent’s option, affidavits of the Borrower, dated as of the Closing Date, certifying to the Administrative Agent, the Collateral Agent, the Lender Parties and the title insurance company recording the Amendments that there have been no changes, replacements or additions to the improvements on the properties described in the Amended and Restated Mortgages as amended by the Amendments, which encroach upon the property or rights of others, which violate any setback or other zoning requirements or which violate any agreements of the Borrower, and otherwise in form and substance satisfactory to the Administrative Agent; and
(iv) evidence that all action (including payment by the Borrower of all title search expenses, title insurance premiums, recording fees, mortgage recording taxes and like taxes) that the Administrative Agent may deem necessary or desirable in order to preserve, perfect and protect the liens and security interests created under the Collateral Documents (other than the Other Perfection Requirements) securing all Obligations of the Borrower under the Financing Documents have been taken;
(e) a pledge agreement, Deposit Account Control Agreement in substantially the form of Exhibit E H hereto (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge “PNC Control Agreement"”), duly executed by the Borrower and any applicable SubsidiaryPNC Bank, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created therebyNational Association;
(ivf) such certificates certified copies of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers the board of directors of the Borrower as approving the Administrative Agent may reasonably require evidencing Transactions and the identityexecution, authority delivery and capacity performance of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents Financing Document to which the Borrower is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the Transactions and each Financing Document to which the Borrower is or is to be a party;
(vg) Borrower shall have delivered to copies of a certificate of the Administrative Agent a certificateSecretary of State of Delaware, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that certifying (A) after giving effect as to a true and correct copy of the financing hereunder and each Loan to be advanced on certificate of formation of the Closing Date, Borrower and each Subsidiary thereof is each Solvent, amendment thereto on file in such Secretary’s office and (B) attached thereto that (1) such amendments are calculations evidencing compliance as of June 30the only amendments to such certificate on file in such Secretary’s office, 2018 with (2) the covenants contained in Article VIII;
(vi) certificates as of a recent Borrower has paid all franchise taxes to the date of such certificate and (3) the Borrower is duly formed and in good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement or presently subsisting under the laws of its the State of Delaware; 63 AESC Amended and Restated Credit Agreement
(h) copies of a certificate of the Secretary of State of each jurisdiction (other than the jurisdiction of incorporation, organization or formation (or equivalent)its formation) set forth in Schedule 3.01(a) which shall be each jurisdiction where the Borrower conducts a material portion of its business stating that the Borrower is duly qualified to do business and in good standing as a foreign corporation in such State and has filed all annual reports required to be filed to the date of such certificate, as applicable;
(viii) written notice a certificate signed on behalf of the Borrower by its secretary or any assistant secretary (the statements made in which certificate shall be true on and as of the Closing Date), certifying (A) as to a true and correct copy of the Constituent Documents of the Borrower designating a deposit account acceptable as of the Closing Date and each amendment to Administrative Agent into its Constituent Documents, if any, from the date on which the proceeds resolutions referred to in Section 3.01(a)(vi) were adopted to the Closing Date, (B) the absence of Loans are any proceeding for the dissolution or liquidation of the Borrower and (C) the names and true signatures of the officers of the Borrower authorized to sign each Financing Document to which it is or is to be disburseda party and the other documents to be delivered hereunder and thereunder;
(viiij) a favorable opinion forecasts prepared by management of Sidley Austin LLPthe Borrower of balance sheets, counsel to income statements and cash flow statements of the Borrower, addressed Borrower reasonably acceptable to the Administrative Agent and on a consolidated basis for each Lenderfiscal quarter commencing with the fiscal quarter ending March 31, 2006 through the fiscal quarter ending December 31, 2010;
(k) legal opinions of appropriate counsel for the Borrower, as to customary such matters concerning the Borrower and the Loan Documents as the Required Lenders any Lender may reasonably request;
(ixl) a certificate legal opinion of Shearman & Sterling LLP, counsel to the Administrative Agent, as to such matters as the Administrative Agent may reasonably request;
(m) certificates signed by a Responsible Officer of the Borrower certifying to the effect that (A) the representations and warranties contained in Article IV are true and correct on and as of the Closing Date as though made on and as of such date both immediately before and immediately after giving effect to the consummation of that portion of the conditions specified in Sections 4.02(a) Transactions being effected on the Closing Date (the “Closing Date Transactions”); and (b) have been satisfied, (B) that there no Default has been no event occurred and is continuing or circumstance since would result from the date Initial Borrowing or would result from the consummation of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement)Closing Date Transactions; and
(xin) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between audited Consolidated financial statements for the Borrower and its Subsidiaries for the Administrative Agent)fiscal year ending December 31, 2005.
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Agreement shall become effective if, on or before September 18, 2018, all The effectiveness of this Amendment (the following “Amendment No. 1 Effective Date”) is subject to the conditions precedent have been metthat:
(a) The Administrative Agent's receipt of the following, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed shall have received counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender Amendment duly executed by the Borrower, the Lenders (including the Departing Lenders), the New Lenders and the Administrative Agent;
(iiib) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) shall have received such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement Amendment and the other Loan Documents Documents;
(c) the Administrative Agent shall have received such documents and certifications as the Administrative Agent may reasonably require to which evidence that the Borrower is duly organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in its state of organization and in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a party or is to be a partyMaterial Adverse Effect;
(vd) Borrower shall have delivered to the Administrative Agent a certificateshall have received favorable opinions of Skadden, in form Arps, Slate ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel counsels to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ixe) the Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) Section 4.02 of the Credit Agreement have been satisfied, ; (B) that there has been no event or circumstance since the current Debt Ratings; and (C) that, as of the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, last financial statements delivered pursuant to the knowledge Credit Agreement, the Borrower was in pro forma compliance with the financial covenants contained in Section 7.10 of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a partyCredit Agreement;
(xf) the Administrative Agent shall have received the results payment of a Lien search all fees and expenses (including a search as to judgments, bankruptcy, tax fees and intellectual property matters expenses of counsel for the Administrative Agent) due and payable in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under connection with this Agreement)Amendment; and
(xig) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any each Departing Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior substantially concurrently with the Amendment No. 1 Effective Date the payment owing to the proposed Closing Date specifying its objection theretoit as described in Section 2(c)(iii) above.
Appears in 1 contract
Sources: Credit Agreement (Hcp, Inc.)
Conditions of Effectiveness. This Agreement shall become effective if, on or before September 18, 2018, and as of the first date (the “Closing Date”) on which all of the following conditions precedent shall have been metsatisfied:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originalsoriginal, "pdfs" or e-mail (in a .pdf format) or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible OfficerOfficer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender Agreement and the BorrowerGuaranty;
(ii) a Revolving Credit Term Note and executed by the Borrower in favor of each Lender requesting a Term Note for each requesting Lender executed by prior to the BorrowerClosing Date;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party or is to be a party;
(viv) Borrower shall have delivered to such documents and certifications as the Administrative Agent a certificatemay reasonably require to evidence that each Loan Party is duly organized or formed, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIIIexpected to have a Material Adverse Effect;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viiiv) a favorable opinion of Sidley Austin ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Borrower Loan Parties and the Loan Documents as the Required Lenders Administrative Agent may reasonably request;
(vi) a favorable opinion of in-house counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vii) a favorable opinion of ▇▇▇▇▇▇▇ LLP, local counsel to the Loan Parties in Maryland, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying that (A1) that the conditions specified in Sections 4.02(athis Section 4.01 have been satisfied (other than those conditions contingent upon the satisfaction of the Administrative Agent and/or the Lenders with respect to certain items received by them under this Section 4.01) and (b2) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding is pending or, to the knowledge of the Borrowerany Loan Party, threatened in writing in any court or before any arbitrator or Governmental Authority related to the credit facility being provided under this Agreement or that would could reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a partyEffect;
(x) a Solvency Certificate from the Administrative Agent shall have received Loan Parties certifying that, after giving effect to the results of a Lien search transactions to occur on the Closing Date (including a search as including, without limitation, any Credit Extension to judgments, bankruptcy, tax and intellectual property matters in its discretionoccur on the Closing Date), in form the REIT and substance reasonably satisfactory theretoits Consolidated Subsidiaries, made against the Borrower under the Uniform Commercial Code on a consolidated basis, are Solvent;
(or applicable judicial docketxi) a duly completed Compliance Certificate as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of the BorrowerClosing Date (giving pro forma effect to the transactions to occur on the Closing Date, indicating among other things that including, without limitation, all Credit Extensions to occur on the assets Effective Date), signed by a Responsible Officer of each Borrower (such certificate being referred to herein as the Borrower are not subject to any Liens (except for Liens permitted under this Agreement“Pro Forma Closing Date Compliance Certificate”); and
(xixii) substantially concurrent payoff in full of all outstanding obligations under such other assurances, certificates, documents, consents or opinions as the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;Administrative Agent or any Arranger reasonably may require.
(bi) All fees required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) All due diligence with respect to the REIT, the Borrower and their respective Subsidiaries, in scope and determination satisfactory to the Administrative Agent, Arrangers and the Lenders in their sole discretion, shall have been completed.
(d) There shall not have occurred since December 31, 2015 any event or condition that has had or could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect.
(e) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) (limited to the fees and expenses of one primary counsel, one specialty counsel in each specialty and one local counsel in each local jurisdiction) to the extent invoiced one (1) prior to or on the first Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.039.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Agreement Amendment shall become effective if, on or before September 18, 2018, all (the "Effective Date") as of the following conditions precedent have been metdate first above written when, and only when:
(a) The Administrative Agent's receipt of the following, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received counterparts of this Amendment executed by the results of a Lien search (including a search Borrower and the Required Lenders or, as to judgmentsany of such Lenders, bankruptcyadvice satisfactory to the Administrative Agent that such Lender has executed this Amendment.
(b) the Administrative Agent shall have additionally received all of the following documents, tax each such document (unless otherwise specified) dated the date of receipt thereof by the Administrative Agent (unless otherwise specified) and intellectual property matters in its discretion)sufficient copies for each Lender, in form and substance reasonably satisfactory thereto, made against to the Administrative Agent (unless otherwise specified) and in sufficient copies for each Lender:
(i) A certificate of the Secretary or an Assistant Secretary of the Borrower under certifying 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 evidence or perfect security interests in all assets names and true signatures of the Borrower, indicating among other things that the assets officers of each the Borrower are not subject authorized to any Liens (except for Liens permitted under sign this Agreement)Amendment and the other documents to be delivered hereunder and thereunder; and
(xiii) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds A certificate signed by a duly authorized officer of the initial Loans funded hereunder and the termination of all commitments thereunder;Borrower stating that:
(bA) All fees required The representations and warranties contained in the Loan Documents and in Section 3 hereof are correct on and as of the date of such certificate as though made on and as of such date, except where such representation and warranty is expressly made as of a specific earlier date, in which case such representation and warranty shall be true as of such earlier date; and
(B) No event has occurred and is continuing that constitutes a Default or Event of Default as of the Effective Date and after giving effect to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paidthis Amendment.
(c) Unless waived by All of the Administrative Agent, the Borrower shall have paid all reasonable accrued fees and documented out-of-pocket fees, charges and disbursements expenses of one primary counsel to the Administrative Agent and the Lenders (directly to such including the accrued fees and expenses of counsel if requested by for the Administrative Agent) to the extent invoiced one (1) Business Day prior to Agent in connection with this Amendment and for other work since the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, been paid in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretofull.
Appears in 1 contract
Conditions of Effectiveness. This Agreement Amendment shall become effective as of the first date (the “Amendment Effective Date”) on which, and only if, on or before September 18, 2018, all each of the following conditions precedent shall have been met:satisfied (or waived by the Required Lenders):
(a) The Administrative Agent's receipt of the following, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificatereceived, in form and substance reasonably satisfactory to the Administrative Agent, counterparts of this Amendment executed by each of the Loan Parties, the Lenders collectively comprising at least the Required Lenders and certified as accurate the Administrative Agent.
(b) All loans and other obligations owing by the chief financial officer Borrower under the PNC Bank Credit Agreement and all outstanding loans under the JPM Credit Agreement (in the case of Borrowerthe loans under the JPM Credit Agreement, that (Awithout a corresponding permanent reduction of the Revolving Commitments under the JPM Credit Agreement) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Dateshall have been, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 or substantially concurrently with the covenants contained Amendment Effective Date shall be, paid in Article VIII;full.
(vic) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to The Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLPshall have received, counsel to the Borrower, addressed in form and substance satisfactory to the Administrative Agent, an amendment to the JPM Credit Agreement, it being understood that, in each case, any such amendment that is in substantially the same form as this Amendment or otherwise substantially consistent with the summary of amendment terms previously approved by the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;shall be deemed satisfactory.
(ixd) Since May 3, 2021, there shall not have been any Asset Disposition of an Unencumbered Property or any incurrence of Indebtedness secured by a Lien on any Unencumbered Property.
(e) The Administrative Agent shall have received a certificate signed by of a Responsible Officer Secretary or an Assistant Secretary of the Borrower certifying (Ai) that as to the conditions specified in Sections 4.02(a) and (b) have been satisfiedresolutions authorizing the transactions contemplated by this Amendment, (Bii) that there has have been no event or circumstance since amendments to the date formation documents of the Audited Financial Statements that has had or could be reasonably expected toBorrower since June 30, either individually or in the aggregate2020, or, if there have a Material Adverse Effectbeen any amendments, attaching copies of such amendments, and (Ciii) that there is have been no actionchanges to the incumbency of officers authorized to execute this Amendment since June 30, suit2020, investigation or proceeding pending or, if there have been any changes, certifying as to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;such changes.
(xf) the Administrative Agent The Borrower shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent for the benefit of each Lender that executes and delivers a signature page to this Amendment on or before the Closing Date shall have been paid and all fees required to be paid prior to the Lenders on or before Amendment Effective Date (each, a “Consenting Lender”) a consent fee in an amount equal to 0.075% of the Closing Date shall have been paidoutstanding principal amount of each Consenting Lender’s Loans.
(cg) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to To the extent invoiced to the Borrower at least one (1) Business Day prior to the Closing Amendment Effective Date, plus such additional amounts all of such fees, charges the reasonable out-of-pocket expenses of the Administrative Agent (including the reasonable fees and disbursements as shall constitute its reasonable estimate expenses of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling one firm of accounts between the Borrower and counsel for the Administrative Agent).
(d) The Borrower due and payable on the Amendment Effective Date shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, been paid in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretofull.
Appears in 1 contract
Conditions of Effectiveness. This Agreement Amendment shall become effective as of the first date (the “Amendment Effective Date”) on which, and only if, on or before September 18, 2018, all each of the following conditions precedent shall have been metsatisfied:
(a) The Administrative Agent's receipt of the followingAgent shall have received, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(ix) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender Amendment executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order and those Lenders comprising Required Lenders or, as to perfect the Liens created thereby;
(iv) any of such certificates of resolutions or other actionLenders, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered advice satisfactory to the Administrative Agent a certificatethat such Lender has executed this Amendment, and (y) the consent attached hereto (the “Consent”) executed by each of the Guarantors.
(b) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer counterparts of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject an amendment to the Pledge Agreement under executed by each of the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;parties thereto.
(viic) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the The Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion)received, in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly a) a certificate of each Loan Party and of each general partner or managing member thereof certifying as to such counsel if requested the matters required by the Administrative Agentcertificate described in Section 3.01(a)(viii) of the Existing Credit Agreement, in each case as of the Amendment Effective Date, (b) a certificate of the Secretary or an Assistant Secretary of each Loan Party (or Responsible Officer of the general partner or managing member of any Loan Party) and of each general partner or managing member (if any) of each Loan Party certifying the names and true signatures of the officers of such Loan Party, or of the general partner or managing member of such Loan Party, authorized to sign this Amendment and each Loan Document to which it is or is to be a party and the other documents to be delivered hereunder and thereunder and (c) certified copies of the resolutions of the Board of Directors of the Parent Guarantor on its behalf and on behalf of each Loan Party for which it is the ultimate signatory approving the transactions contemplated by this Amendment and each Loan Document contemplated hereby to which it or such Loan Party is or is to be a party, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to the extent invoiced one (1) Business Day prior transactions under the Loan Documents and each Loan Document to the Closing Date, plus which it or such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred Loan Party is or is to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)party.
(d) The Borrower Administrative Agent shall have delivered received, in form and substance satisfactory to the Administrative Agent, (i) an amendment of the 7 Year Term Loan Agreement and any Lender requesting (ii) an amendment to the same, a Beneficial Ownership Certification5 Year Term Loan Agreement, in each case at least five modifying the underlying agreement to account for the terms herein and making certain other corresponding modifications.
(5e) Business Days prior to (i) the Closing Date. Without limiting the generality fees provided for in Section 10 and (ii) all of the provisions reasonable out-of-pocket expenses of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent (including the reasonable fees and expenses of counsel for the Administrative Agent) due and payable on the Amendment Effective Date shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretobeen paid in full.
Appears in 1 contract
Conditions of Effectiveness. This Agreement shall not become effective ifeffective, on and no Fronting Bank or before September 18Lender shall have an obligation to make its initial Credit Extension hereunder, 2018, all until satisfaction or waiver of the following conditions precedent have been metprecedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals, "pdfs" originals or telecopies facsimiles or sent by electronic mail (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and each Borrower as of the BorrowerEffective Date;
(ii) a Revolving Credit Note Security Agreement and a Term Note Control Agreement for each requesting Lender Borrower executed by the Borrowerparties thereto with such number of counterparts as may be requested by the Administrative Agent;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly Note executed by the each Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence favor of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created therebyeach Lender requesting a Note;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers the Secretary or Assistant Secretary of the each Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the such Borrower is a party or is to be a party;
(v) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Borrower shall have delivered is duly organized or formed, validly existing, in good standing (to the extent such concept is applicable) and qualified to engage in business in the jurisdiction in which it is organized;
(vi) a favorable opinion from each of (A) Skadden, Arps, Slate, Meager & ▇▇▇▇ LLP, New York counsel to the Borrowers, and (B) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, Bermuda counsel to the Borrowers, in each case addressed to the Administrative Agent a certificateAgent, the Fronting Bank and each Lender and in form and substance reasonably satisfactory acceptable to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice a certificate of a Responsible Officer of each Borrower either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by each Borrower designating and the validity against such Borrower of the Loan Documents to which it is a deposit account acceptable to Administrative Agent into which the proceeds of Loans party, and confirming that such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are to be disbursedso required;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ixA) a certificate signed by a Responsible Officer of the each Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, satisfied and (B) a certificate signed by a Responsible Officer of Alterra Capital certifying that (1) since December 31, 2010 there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or not occurred a material adverse change in the aggregatebusiness assets, have properties, results of operations or condition (financial or otherwise) of Alterra Capital and its Subsidiaries, taken as a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect whole; and (D2) that no consents, licenses the current Financial Strength Rating of Alterra Bermuda;
(ix) the Financial Strength Rating of Alterra Bermuda shall be A- or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a partybetter;
(x) a Borrowing Base Certificate for each Borrower executed by a Responsible Officer of such Borrower calculated as of the most recent Business Day in accordance with the requirements hereof and demonstrating compliance with Section 6.10 with respect to such Borrower;
(xi) the Existing Credit Agreements shall have been terminated and all loans, interest, fees and other costs and expenses due and owing through the Effective Date shall have been paid in full;
(xii) a Master Participation Agreement executed by all of the Lenders, the lenders under the Existing Credit Agreements and the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against to the Borrower Administrative Agent;
(xiii) satisfactory evidence that there are no Liens on the Collateral Accounts and no financing statements or other similar filings with respect thereto other than those 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Existing Credit Agreement and Liens permitted under this AgreementSections 7.06(b) and (n);
(xiv) a letter from the Process Agent agreeing to the terms of Section 11.14(d); and
(xixv) substantially concurrent payoff in full of all outstanding obligations under such other assurances, certificates, documents, consents or opinions as the Existing Credit Agreement with Administrative Agent, the proceeds of L/C Administrator, the initial Loans funded hereunder and Lender or the termination of all commitments thereunder;Required Lenders may reasonably require.
(b) All Any fees required to be paid to the Administrative Agent on or before the Closing Effective Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paidextent invoiced at least one (1) Business Day prior thereto.
(c) Unless waived by the Administrative Agent, the Borrower Alterra Capital and Alterra Bermuda shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least one (1) Business Day day prior to or on the Closing Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Alterra Capital, Alterra Bermuda and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.039.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Effective Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Agreement Sections 2 and 3 of this Amendment shall become effective ifeffective, on or before as of September 1830, 20182016, all upon the satisfaction of the following conditions precedent have been metconditions:
(a) The Administrative Agent's receipt execution and delivery of this Amendment by the followingBorrower, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each Required Lenders.
(b) There shall not have occurred a material adverse change (a) in the operations, business, properties, liabilities (actual or contingent) or condition (financial or otherwise) of the Lenders:
Guarantor, the Borrower or their Subsidiaries, taken as a whole, since June 30, 2016 (i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, except in each case as amendedto the extent triggered by the bankruptcy of Hanjin Shipping Co., the "Pledge Agreement"Ltd. And its Affiliates), duly executed by (b) the ability of the Borrower or the Guarantor to perform its Obligations under the Loan Documents, (c) the legality, validity, binding effect or enforceability against the Borrower or Guarantor of the Loan Documents (collectively, a “Material Adverse Effect”), or (d) in the facts and information regarding the Borrower and any applicable Subsidiary, together with:Guarantor as represented to date.
(Ac) The absence of any action, suit, investigation or proceeding pending or, to the extent not already knowledge of the Borrower or the Guarantor, threatened in the Administrative Agent's possession, certificates representing the pledged equity referred any court or before any arbitrator or governmental authority that could reasonably be expected to therein accompanied by undated stock powers executed in blank; andhave a Material Adverse Effect.
(Bd) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the The Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other shall have received certificates of Responsible Officers Officer of the Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement Amendment and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each such Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it Party is a party;.
(xe) the The Administrative Agent shall have received a Borrowing Base Certificate, dated as of September 30, 2016, demonstrating, on a pro forma basis after giving effect to contemplated and permitted asset dispositions and Segregated Collateral Pool Liens and effectiveness of this Amendment, continued Borrowing Base compliance. sf-3703943
(f) The Borrower shall have provided the results Administrative Agent with copies of a Lien search amendments or waivers, under (including a search i) the Revolving Credit Agreement, dated as to judgmentsof July 23, bankruptcy2015, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of among the Borrower, indicating as borrower, the Guarantor, as guarantor, the lenders party thereto and ABN AMRO Capital USA LLC, as administrative agent, (ii) the Term Loan Agreement, dated as of April 30, 2014, among other things that the assets Borrower, as borrower, the Guarantor, as guarantor, the lenders party thereto and Union Bank, N.A., as administrative agent, (iii) the Credit Agreement, dated as of each April 26, 2013, among TAP Funding Ltd., as borrower, the lenders party thereto and ABN AMRO Capital USA LLC, as administrative agent, and (iv) the Credit Agreement, dated as of August 5, 2011, among TW Container Leasing, Ltd., the lenders party thereto and ▇▇▇▇▇ Fargo Securities LLC, as administrative agent, required for the Borrower are not subject to certify that no default or event of default exists under any Liens (Indebtedness facilities to which the Borrower, Guarantor or Subsidiaries is an obligor, in each case certified as complete and correct and in full force and effect, except for Liens permitted under to the extent conditioned on the simultaneous effectiveness of this Agreement); andAmendment.
(xig) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required The Borrower shall have paid or caused to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required as described in the fee letter between the Administrative Agent and the Borrower, including, without limitation, a fee for the account of each Lender who executes and delivers this Amendment no later than 5:00 p.m. eastern time on October 26, 2016, an amendment fee equal to be paid to 12.5 basis points of the Lenders on or before the Closing Date shall have been paidrespective Commitment of such Lender.
(ch) Unless waived by the Administrative Agent, the The Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agentamounts described in Section 8(b) to the extent hereof that have been invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)date hereof.
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Agreement shall become effective if, on or before September 18, 2018, as of the first date (the “Second Amendment Effective Date”) that all of the following conditions precedent shall have been metsatisfied:
(a) 3.1 The Administrative Agent's ’s receipt of the following, each of which shall be originals, "pdfs" e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originalsoriginals to the extent set forth below or otherwise requested by the Administrative Agent) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) specified and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(ia) executed counterparts of this Agreement, sufficient in such number for distribution to as requested by the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable SubsidiaryBorrower, together with:
the Guarantors (A) to including each of the extent not already in New Subsidiary Guarantors), the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; andL/C Issuers and Lenders constituting Required Lenders.
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(ivb) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party or is to be a party;
(vc) Borrower shall have delivered to such documents and certifications as the Administrative Agent a certificatemay reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in form good standing and substance reasonably satisfactory qualified to the Administrative Agent, and certified as accurate by the chief financial officer engage in business in its jurisdiction of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIIIorganization;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viiid) a favorable opinion of Sidley Austin (i) McGuireWoods LLP, counsel to the BorrowerLoan Parties, and (ii) M▇▇▇▇▇▇ ▇▇▇▇, in-house counsel to the Loan Parties, in each case, addressed to the Administrative Agent and each LenderLender and L/C Issuer, as to customary the matters concerning the Borrower Loan Parties, this Agreement and the other Loan Documents as the Required Lenders Administrative Agent may reasonably request;
(ixe) a certificate signed by of a Responsible Officer of the Borrower certifying to the effect that (Ai) that the conditions specified in Sections 4.02(a) 3.2 and 3.3 have been satisfied and (bii) no event has occurred and is continuing which constitutes a Default;
(f) a fully executed copy of the Intercreditor Agreement;
(g) a fully executed copy of an amendment, in each case dated as of (or prior to) the Second Amendment Effective Date, to each of the following (each as defined in the Intercreditor Agreement):
(i) the Regions Term Loan Agreement;
(ii) the Huntington Term Loan Agreement;
(iii) the PNC Term Loan Agreement; and
(iv) the Prudential Note Agreement; and
(h) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuers or the Required Lenders reasonably may require.
3.2 The representations and warranties contained in Section 4 are correct on and as of the Second Amendment Effective Date, as though made on and as of such date other than any such representations or warranties that, by their terms, refer to another date, in which case such representations and warranties shall have been satisfiedcorrect as of such other date.
3.3 There shall not have occurred since December 31, (B) that there has been no 2017, any event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected tocircumstance, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation has had or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would could reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses excluding any event or approvals are required in connection with circumstance resulting from the consummation COVID-19 pandemic to the extent such event or circumstance has been publicly disclosed by the Borrower of the transaction contemplated hereby and the execution, delivery and performance in its securities filings or disclosed in writing by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent and the Lenders prior to the Second Amendment Effective Date, and the scope of such adverse effect is no greater than that which has been disclosed).
3.4 The Administrative Agent and each Lender shall have received all documentation and other information that the results of a Lien search (Administrative Agent or such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including a search as to judgmentsthe U.S. Patriot Act, bankruptcy, tax and intellectual property matters in its discretion)the Beneficial Ownership Regulation, in form and substance reasonably satisfactory theretoeach case, made against to the Borrower under extent requested at least five Business Days prior to 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject Second Amendment Effective Date.
3.5 Any fees owed to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees Lender or Arranger required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Second Amendment Effective Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Agreement Amendment shall become effective if, on or before September 18, 2018, all (the "Effective Date") as of the following conditions precedent have been metdate first above written when, and only when:
(a) The Administrative Agent's receipt of the following, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received counterparts of this Amendment executed by the results of a Lien search (including a search Borrower and the Required Lenders or, as to judgmentsany of such Lenders, bankruptcyadvice satisfactory to the Administrative Agent that such Lender has executed this Amendment.
(b) the Administrative Agent shall have additionally received all of the following documents, tax each such document (unless otherwise specified) dated the date of receipt thereof by the Administrative Agent (unless otherwise specified) and intellectual property matters in its discretion)sufficient copies for each Lender, in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly unless otherwise specified) and in sufficient copies for each Lender
(i) A certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to such counsel if requested sign this Amendment and the other documents to be delivered hereunder and thereunder; and
(ii) A certificate signed by a duly authorized officer of the Administrative Agent) to the extent invoiced one Borrower stating that:
(1) Business Day prior The representations and warranties contained in the Loan Documents and in Section 3 hereof are correct on and as of the date of such certificate as though made on and as of such date, except where such representation and warranty is expressly made as of a specific earlier date, in which case such representation and warranty shall be true as of such earlier date; and
(2) No event has occurred and is continuing that constitutes a Default or Event of Default as of the Effective Date after giving effect to this Amendment.
(iii) All of the accrued fees and expenses of the Administrative Agent and the Lenders (including the accrued fees and expenses of counsel for the Administrative Agent and the Lenders in connection with this Amendment and for other work since the Closing Date) shall have been paid in full, plus such additional amounts of such feesincluding without limitation, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred payment by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, for the pro rata benefit of the Lenders that execute this Amendment by no later than 12:00 p.m. (New York City time) on April 23, 2003, an amendment fee equal to 0.05% of the sum of (x) the outstanding principal balance of the Tranche B Term Loans and any Lender requesting (y) the same, a Beneficial Ownership Certificationaggregate amount of the Revolving Credit Commitments and the L/C Commitments of such Lenders under the Credit Agreement, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality without duplication, as of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretodate hereof.
Appears in 1 contract
Conditions of Effectiveness. This Agreement shall become effective if, on or before September 18October 30, 20182009, all of the following conditions precedent have been met:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals, "“pdfs" ” or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the BorrowerBorrower in favor of each Lender requesting a Note;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(viv) Borrower shall have delivered to such documents and certifications as the Administrative Agent a certificate, in form and substance may reasonably satisfactory require to evidence that the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIIIduly organized or formed;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ixv) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a4.03(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, (x) have a Material Adverse EffectEffect or (y) result in a material adverse change in or have a material adverse effect upon the prospects of the Borrower or the Borrower and its Subsidiaries taken as a whole, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect Effect, (D) a calculation of the financial covenants in Section 7.11 as of the last day of the fiscal quarter of the Borrower most recently ended prior to the Closing Date and (DE) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xivi) substantially concurrent payoff in full of all outstanding obligations under such other assurances, certificates, documents, consents or opinions as the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;Administrative Agent or any Lender reasonably may require.
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Agreement Amendment shall become effective if, on or before September 18, 2018, all as of the following conditions precedent have been met:
(a) The Administrative Agent's receipt of the following, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agentfirst above written when, and certified as accurate by the chief financial officer of Borroweronly when, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received counterparts of this Amendment executed by Holdings and the results Required Lenders or, as to any of a Lien search the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment; and Section 1 of this Amendment shall become effective when and only when the Administrative Agent shall have received (a) the fees specified in Section 2 hereof, and payment of all other accrued fees and expenses of the Administrative Agent (including a search as the reasonable accrued fees and expenses of counsel to judgmentsthe Administrative Agent invoiced on or prior to the date hereof) and (b) all of the following documents, bankruptcy, tax and intellectual property matters in its discretioneach such document dated the date of receipt thereof by the Administrative Agent (unless otherwise specified), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent:
(i) Counterparts of the Consent appended hereto (the "Consent"), executed by each of the Loan Parties (other than Holdings);
(ii) Certified copies of (A) the resolutions of the Board of Directors of (1) Holdings approving this Amendment and the matters contemplated hereby and (2) each other Loan Party evidencing approval of the Consent and (B) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment, the Consent and all other matters contemplated hereby;
(iii) A certificate signed by a duly authorized officer of Holdings stating that: (A) the representations and warranties contained in Section 4 hereof and in the Loan Documents are true and correct on and as of the date of such certificate as though made on and as of such date other than any such representations or warranties that, by their terms, refer to a date other than the date of such certificate, and any Lender requesting the same, (B) no event has occurred and is continuing that constitutes a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoDefault.
Appears in 1 contract
Sources: Credit Agreement (Alpharma Inc)
Conditions of Effectiveness. This Agreement shall become effective if, on or before September 18, 2018, all The effectiveness of the Commitments hereunder is subject to satisfaction of the following conditions precedent have been meton the Effective Date:
(a) The Receipt by the Administrative Agent's receipt Agent of the following, each :
(1) executed counterparts of which shall be originals, "pdfs" or telecopies (followed promptly this Agreement and any Note requested by originals) unless otherwise specifieda Lender prior to the Effective Date, each properly executed by a Responsible Officer, each dated Officer of the Closing Date (orsigning Loan Party and, in the case of certificates this Agreement, by each Lender (which, subject to Section 11.10(b), may include any Electronic Signatures transmitted by telecopy, emailed pdf. or any other electronic means that reproduces an image of governmental officials, an actual executed signature page);
(2) copies of the Organizational Documents of each Loan Party certified to be true and complete as of a recent date before by the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each appropriate Governmental Authority of the Lenders:
(i) executed counterparts state or other jurisdiction of this Agreementits incorporation or organization, sufficient in number for distribution to where applicable, and certified by a secretary or assistant secretary of such Loan Party, as reasonably requested by the Administrative Agent, each Lender to be true and correct as of the BorrowerEffective Date;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv3) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party or is to be a party;
(v4) Borrower shall have delivered to such documents and certifications as the Administrative Agent a certificate, in form and substance may reasonably satisfactory require to the Administrative Agentevidence that each Loan Party is duly organized or formed, and certified as accurate by that the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower Company and each Subsidiary thereof Guarantor is each Solventvalidly existing, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject (to the Pledge Agreement under extent relevant in the laws of applicable jurisdiction) and qualified to engage in business in its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;formation; and
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii5) a favorable opinion of Sidley Austin L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, special counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as Lender party to customary matters concerning this Agreement on the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;Effective Date.
(b) All fees required to be paid to Receipt by the Administrative Agent on or before the Closing Date shall have been paid and of all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid and all reasonable and documented out-of-pocket feesexpenses (including, charges without limitation, legal fees and disbursements of one primary counsel expenses for which invoices have been presented at least two Business Days (or such later time acceptable to the Borrower) prior to the Effective Date) and all other compensation contemplated hereby, payable to the Joint Lead Arrangers, the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership CertificationLenders, in each case required by this Agreement or the Fee Letter to be paid on the Effective Date.
(i) The Lenders shall have received, at least five (5) three Business Days prior to the Closing Effective Date. Without limiting , all documentation and other information regarding the generality Borrower requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, to the extent requested in writing of the provisions of Borrower at least 10 Business Days prior to the last paragraph of Section 10.03Effective Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, for purposes of determining compliance with at least three Business Days prior to the conditions specified in this Section 4.01Effective Date, each any Lender that has signed requested, in a written notice to the Borrower at least 10 Business Days prior to the Effective Date, a Beneficial Ownership Certification in relation to the Borrower shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement Agreement, the conditions set forth in this clause (c) shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretosatisfied).
Appears in 1 contract
Sources: Three Year Term Loan Credit Agreement (Amphenol Corp /De/)
Conditions of Effectiveness. This The effectiveness of this Agreement shall become effective if, on or before September 18, 2018, all of is subject to the following conditions precedent that the Administrative Agent shall have been met:
(a) The Administrative Agent's receipt of the following, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before received on the Closing Date) and each , in form and substance reasonably satisfactory to the Administrative Agent and Lenders, the following:
(a) executed originals of each of this Agreement, the Parent Guaranty and the Notes, together with all schedules and exhibits hereto and thereto;
(b) executed originals of a Reaffirmation Agreement from each existing Guarantor;
(c) favorable written opinions of counsel to the Borrower and the Guarantors dated the Closing Date, addressed to the Agent and the Lenders and reasonably satisfactory to ▇▇▇▇▇ ▇▇▇▇▇ Mulliss & ▇▇▇▇▇, L.L.P., special counsel to the Agent, substantially in the forms of Exhibits K-1 and K-2 attached hereto and incorporated herein by reference;
(d) resolutions of the boards of directors or other appropriate governing body (or of the appropriate committee thereof) of the Borrower, the Parent and to the extent necessary, each of the Lenders:other Guarantors certified by its secretary or assistant secretary or other appropriate officer as of the Closing Date, appointing (in the case of the Borrower) the initial Authorized Representative and approving and adopting the Loan Documents to be executed by such Person, and authorizing the execution, delivery and performance thereof;
(e) specimen signatures of officers of the Borrower, the Parent and each other Guarantor executing the Loan Documents on behalf of such Person, certified by the secretary or assistant secretary or other appropriate official of the Borrower or such Guarantor, as applicable;
(f) the charter documents of the Borrower, the Parent and each other Guarantor certified as of a recent date by the Secretary of State or other appropriate Governmental Authority of its jurisdiction of incorporation;
(g) the by-laws of the Borrower, the Parent and each other Guarantor certified as of the Closing Date as true and correct by the secretary or assistant secretary of the Person to whom such by-laws relate;
(h) certificates issued as of a recent date by the Secretary of State or other appropriate Governmental Authority of its jurisdiction of incorporation as to the due existence and good standing of the Borrower, the Parent and each other Guarantor therein;
(i) executed counterparts of this Agreement, sufficient in number for distribution to all applicable fees payable by the Administrative Agent, each Lender and Borrower on the BorrowerClosing Date;
(iij) with respect to the Borrower and each Guarantor, appropriate certificates of qualification to do business, good standing and, where appropriate, authority to conduct business under assumed name, issued as of a Revolving Credit Note and a Term Note for each requesting Lender executed recent date by the BorrowerSecretary of State or other appropriate Governmental Authority of each jurisdiction in which the failure to be qualified to do business or authorized so to conduct business could result in a Material Adverse Effect;
(iiik) a pledge agreement, certificate of an Authorized Representative of the Borrower certifying as to the continuing effectiveness of all policies of insurance required hereunder;
(l) a certificate of the Assistant Treasurer of the Borrower in substantially the form of Exhibit E (together L hereto certifying compliance with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blankcertain financial covenants hereunder; and
(Bm) such evidence of the completion of all other actionsdocuments, recordings instruments, certificates and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower opinions as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party request on or is to be a party;
(v) Borrower shall have delivered prior to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required Date in connection with the consummation by the Borrower of the transaction transactions contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paidhereby.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Amendment Agreement and the Amended and Restated Credit Agreement shall become effective if(such date of effectiveness, on or before September 18, 2018, all the “Amendment Effective Date”) immediately upon the satisfaction of the following conditions precedent have been metconditions:
(a) The Receipt by the Administrative Agent's receipt Agent of the following, each executed counterparts of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specifiedthis Amendment Agreement, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
L/C Issuer, (iii) a pledge agreementResponsible Officer of each Loan Party, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates each Consenting Lender, and (v) each New Lender (if any).
(b) [Reserved.]
(c) Satisfaction of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers each of the Borrower conditions precedent to effectiveness set forth in clauses (b) through (n) of Section 5.01 of the Amended and Restated Credit Agreement.
(d) The Company shall pay by wire transfer of immediately available funds not later than 2:00 p.m. (Eastern time) (or such later time as the Administrative Agent may reasonably require evidencing agree in its sole discretion) to (i) the identityAdministrative Agent, authority and capacity for the account of each Responsible Officer thereof authorized Existing Lender, Consenting Lender and New Lender (if any), as applicable, all fees and expenses required to act as a Responsible Officer be paid to such Person in connection with this Amendment Agreement on or before the Amendment Effective Date as provided in Section 1(d) above in accordance with that certain Engagement Letter, dated as of November 4, 2022 (the “Engagement Letter”), by and among the Company and the other Loan Documents to which the Borrower is a party or is Joint Lead Arrangers, (ii) each Joint Lead Arranger, for its own account, all fees and expenses required to be a party;
paid to such Person in connection with this Amendment Agreement on or before the Amendment Effective Date as provided in the Engagement Letter and (viii) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrowerfor its own account, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent in connection with the Amended and Restated Credit Agreement on or before the Closing Amendment Effective Date shall have been paid as provided in that certain Agency Fee Letter, dated as of the date hereof (the “Agency Fee Letter”), by and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Company and the Administrative Agent).
(de) The Borrower representations and warranties of the Company and each other Loan Party contained in Section (4) below or which are contained in any document furnished at any time under or in connection herewith, shall have delivered (i) with respect to the Administrative Agentrepresentations and warranties that contain a materiality qualification or are qualified by Material Adverse Effect, be true and any Lender requesting the samecorrect and (ii) with respect to representations and warranties that do not contain a materiality qualification and are not qualified by Material Adverse Effect, a Beneficial Ownership Certificationbe true and correct in all material respects, in each case at least five (5) Business Days prior to case, on and as of the Closing Amendment Effective Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03Upon such effectiveness, for purposes of determining compliance with the conditions specified in (i) this Section 4.01, each Lender that has signed this Amendment Agreement shall be deemed a binding agreement between the parties hereto and their permitted assigns under the Amended and Restated Credit Agreement and (ii) each party hereto agrees that its commitments and consents to have consented tothis Amendment Agreement, approved or accepted or to once delivered, are irrevocable and may not be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the withdrawn. The Administrative Agent shall have received promptly notify the Company and the Lenders of the Amendment Effective Date in writing, and such notice from shall be conclusive and binding; provided that, failure to give such Lender prior to notice shall not affect the proposed Closing Date specifying its objection theretoeffectiveness, validity or enforceability of this Amendment Agreement.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Fti Consulting, Inc)
Conditions of Effectiveness. This Agreement shall become effective if, on or before September 18, 2018, all of the date on which the following conditions precedent shall have been met:satisfied (or waived by the Required Lenders):
(a) The Administrative Agent's receipt of the following, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible OfficerOfficer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Required Lenders:
(i) by the Lenders and the Administrative Agent, executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the BorrowerBorrower in favor of each Lender requesting a Note by such Lender;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower Lenders and any applicable Subsidiarythe Administrative Agent, executed counterparts of the Collateral Documents and the Guaranty, together with:
(A) to by the extent not already in Lenders and the Administrative Agent's possession, certificates representing if any of the pledged equity referred Pledged Equity Interests (other than in respect of the Equity Interests of Lux Holdco) shall be uncertificated securities (as defined in Article 8 of the UCC), confirmation and evidence satisfactory to therein accompanied by undated stock powers executed the Required Lenders that the security interest in blank; andsuch uncertificated securities has been transferred to and perfected for the Administrative Agent for the benefit of the Secured Parties in accordance with Section 9-106 of the Uniform Commercial Code;
(B) such evidence of by the completion Lenders and the Administrative Agent, proper financing statements in form appropriate for filing under the Uniform Commercial Code of all other actions, recordings and filings of or with respect to the Pledge Agreement jurisdictions that the Administrative Agent Required Lenders may deem reasonably necessary or reasonably desirable in order to perfect the Liens created therebyunder the Security Agreement, covering the Collateral described therein;
(C) by the Lenders, copies of any other Uniform Commercial Code, judgment, tax lien, Intellectual Property, or other searches reasonably requested by the Required Lenders with respect to the Collateral, together with copies of the financing statements (or similar documents) disclosed by such searches, and accompanied by evidence that any Liens indicated in any such financing statement that are not permitted by Section 7.01 have been or contemporaneously will be released or terminated (or otherwise provided for in a manner reasonably acceptable to the Required Lenders); and
(D) by the Lenders, evidence that all other actions, recordings and filings that the Required Lenders may deem necessary or desirable in order to perfect the Liens created under the Collateral Documents have been taken or made (including receipt of duly executed payoff letters, UCC-3 termination statements and consent agreements, if applicable) or arrangements therefor satisfactory to the Required Lenders shall have been made;
(iv) the 2019 Mortgage, covering each of the Specified Barge Rigs listed on Schedule 5.07(A), duly executed by the appropriate Loan Party, together with:
(A) evidence that the 2019 Mortgage has been duly executed, acknowledged and delivered and is in form suitable for filing or recording with the United States Coast Guard and all other filing or recording offices that the Required Lenders may deem necessary or desirable in order to create a valid second and subsisting Lien on the Specified Barge Rigs described therein in favor of the Administrative Agent as trustee for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid (or arrangements for such payment satisfactory to the Required Lenders shall have been made); and
(B) to the Lenders, evidence that all other actions that the Required Lenders may deem necessary or desirable in order to create valid second and subsisting Liens on the property described in the Mortgages has been taken, including delivery of an abstract of title evidencing that the 2019 Mortgage has been recorded with the National Vessel Documentation Center, and such other documentation as the Lenders and the Administrative Agent may require, including a certificate of ownership, copy of certificate of documentation, and copy of certificate of financial responsibility (for each jurisdiction where applicable) with respect to each Specified Barge Rig;
(v) to the Lenders and the Administrative Agent, such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party (other than Lux Holdco), as the Administrative Agent Required Lenders may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party or is to be a party;
(vvi) Borrower shall have delivered to the Administrative Agent a certificate, in form Lenders and substance reasonably satisfactory to the Administrative Agent, such documents, agreements and certified certifications as accurate by the chief financial officer Required Lenders may reasonably require to evidence that each Loan Party (other than Lux Holdco), is duly organized or formed, and that each of Borrower, that the Loan Parties is validly existing and in good standing (A) after giving effect to the financing hereunder and each Loan to be advanced on extent that such latter concept is applicable in the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (Brelevant jurisdiction) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicableorganization;
(vii) written notice by Borrower designating a deposit account acceptable to the Lenders and the Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) Agent, a favorable opinion of Sidley Austin ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to covering such customary matters concerning the Borrower Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(viii) to the Lenders and the Administrative Agent, favorable opinions of local counsel to the Loan Parties in Delaware, Louisiana, Nevada and Oklahoma, addressed to the Administrative Agent and each Lender, covering such customary matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;
(ix) a favorable opinion of local counsel to the Loan Parties in Luxembourg, addressed to the Administrative Agent and each Lender, covering such customary matters concerning Lux Holdco as the Required Lenders may reasonably request;
(x) a favorable opinion of local counsel to the Administrative Agent in Luxembourg, addressed to the Administrative Agent and each Lender, covering such customary matters concerning the validity, perfection and enforceability of the Loan Documents governed by Luxembourg law as the Required Lenders may reasonably request;
(xi) to the Lenders, a certificate of a Responsible Officer of the Borrower either (1) attaching copies of all consents (including, without limitation, from any Governmental Authority, shareholder or other third-party), licenses and approvals required in connection with the execution, delivery and performance by any Loan Party and the validity against any Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect (except that the following consents do not need to be attached to such certificate to the extent delivered as attachments to any other certificate delivered on the Closing Date: (A) any consents of a member or partner of a Loan Party that are required with respect to the pledge of equity under such Loan Party’s Organization Documents and (B) any resolutions by each Loan Party’s governing body authorizing and approving the Loan Documents), or (2) stating that no such consents, licenses or approvals are so required;
(xii) to the Lenders and the Administrative Agent, executed counterparts of the Senior Lien Intercreditor Agreement;
(xiii) to the Lenders and the Administrative Agent, executed copies of the ABL Credit Agreement and the other ABL Loan Documents;
(xiv) to the Lenders and the Administrative Agent, a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections Section 4.02(a) and (bSection 4.02(b) have been satisfied;
(xv) to the Lenders, a reasonably satisfactory opening balance sheet of the Borrower and its consolidated Subsidiaries giving pro forma effect to the transactions occurring on the effective date of the Plan of Reorganization and a customary funds flow memorandum;
(Bxvi) that there has been no event or circumstance since to the date Lenders, copies of the Audited Financial Statements that has had or could be reasonably expected toand unaudited interim consolidated financial statements of the Borrower and its consolidated Subsidiaries for each fiscal quarterly period ended subsequent to December 31, either individually or 2018 as to which such financial statements are available, accompanied by a certificate of a Responsible Officer of the Borrower;
(xvii) to the Lenders, a Solvency Certificate in the aggregateform attached hereto as Exhibit F, executed by a Responsible Officer of Borrower;
(xviii) to the Lenders and the Administrative Agent, all documentation and other information with respect to the Loan Parties required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act and the Beneficial Ownership Regulation at least five (5) Business Days prior to the Closing Date to the extent the same have been requested at least ten (10) Business Days prior to the Closing Date;
(xix) to the Lenders, evidence and documentation in form and substance reasonably satisfactory to the Required Lenders that, prior to or substantially concurrently with the Closing Date, Borrower has received cash proceeds of not less than $95,000,000 from the Rights Offering (as defined in the RSA), as such amount may be reduced to provide for netting of fees and expenses
(xx) to the Lenders, projections of the consolidated balance sheets, results of operations, cash flow and unused Commitments for the Borrower and its consolidated Subsidiaries covering the period from January 1, 2019 through the Maturity Date, prepared on a Material Adverse Effectquarterly basis for the fiscal year ending on December 31, 2019 and an annual basis for each fiscal year ending December 31, 2020, December 31, 2021 and December 31, 2022 (the “Initial Projections”), prepared by a Responsible Officer of the Borrower having responsibility over financial matters, all in form and substance reasonably satisfactory to the Required Lenders;
(xxi) to the Lenders, such other assurances, certificates (including a perfection certificate, if requested), documents, reports (including any environmental reports), consents or opinions as any Lender reasonably may require; and
(xxii) to the Lenders, with regard to Lux Holdco:
(A) an up-to-date copy of the constitutional documents of Lux Holdco;
(B) an excerpt delivered by the RCS pertaining to Lux Holdco dated no earlier than one (1) Business Day prior to the date of this Agreement;
(C) that there is a non-registration certificate (certificat de non-inscription d’une decision judiciaire) from the RCS pertaining to Lux Holdco and dated no action, suit, investigation or proceeding pending or, earlier than one (1) Business Day prior to the knowledge date of this Agreement, stating that no judicial decision has been registered with the RCS by application of article 13, items 2 to 11bis and article 14 of the BorrowerLuxembourg law dated 19 December 2002 relating to the register of commerce and companies as well as the accounting and the annual accounts of companies, threatened as amended (the “RCS Law”), according to which Lux Holdco would be subject to one of the judicial proceedings referred to in writing these provisions of the RCS Law including in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect particular, bankruptcy (faillite), controlled management (gestion contrôlée), suspension of payments (sursis de paiement), arrangement with creditors (concordat préventif de la faillite) and judicial liquidation (liquidation judiciaire) proceedings.
(D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower a copy of a resolution of the transaction contemplated hereby board of directors of Lux Holdco:
(1) approving the terms of, and the executiontransactions contemplated by, delivery and performance by the Borrower this Agreement and the validity against the Borrower of Loan Documents to which it is a party and resolving that it execute, deliver and perform this Agreement and the Loan Documents to which it is a party;
(x2) authorizing a specified person or persons to execute this Agreement and the Administrative Agent shall have received the results of Loan Documents to which it is a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in party on its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement)behalf; and
(xi3) substantially concurrent payoff authorizing a specified person or persons, on its behalf, to sign and/or dispatch all documents and notices (including, if relevant, any Utilisation Request) to be signed and/or dispatched by it under or in connection with this Agreement and the Loan Documents to which it is a party.
(E) a specimen of the signature of each person authorized by the resolution referred to in paragraph (D) above;
(F) a certificate of a Responsible Officer of Lux Holdco confirming that:
(1) it is not subject to bankruptcy (faillite), pre-bankruptcy, insolvency, voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de faillite), reprieve from payment (sursis de paiement), controlled management (gestion contrôlée);
(2) it is not, on the date of the Agreement, in a state of cessation of payments (cessation de paiement) and has not lost its commercial creditworthiness;
(3) no application has been made by it or, as far as it is aware, by any other person for the appointment of a commissaire, juge-commissaire, liquidateur, curateur or similar officer pursuant to any insolvency or similar proceedings;
(4) no application has been made by it for a voluntary or judicial winding-up or liquidation; and
(5) borrowing or guaranteeing or securing, as appropriate, the Obligations would not cause any borrowing, guarantee, security or similar limit binding Lux Holdco to be exceeded.
(G) a certificate of an authorized signatory of Lux Holdco certifying that each copy document relating to it specified in this Section 4.01(a) is correct, complete and in full force and effect as at a date no earlier than the date of all outstanding obligations this Agreement.
(H) a copy of the shareholders’ register of the Lux Holdco (prior to the registration of the pledge created under the Existing Credit Agreement with the proceeds Lux Share Pledge Agreement) evidencing that ▇▇▇▇▇▇ North America Operations, LLC owns 100% of the initial Loans funded hereunder outstanding Equity Interests of Lux Holdco.
(I) evidence reasonably satisfactory to the Required Lenders that Lux Holdco and one or more other Loan Parties shall, in the termination aggregate, have acquired and directly own 100% of all commitments thereunder;the outstanding Equity Interests of ▇▇▇▇▇▇ Drilling Arctic Operating, LLC, Quail Tools, L.P., ▇▇▇▇▇▇ Drilling Offshore USA L.L.C. and Quail USA, LLC.
(b) All The Administrative Agent and Lenders shall have received all fees required to be paid and other amounts due and payable on or prior to the Administrative Agent on or before Closing Date, including, without limitation, all filing and recording fees and Taxes and, to the extent invoiced at least two Business Days prior to the Closing Date shall have been paid and Date, reimbursement or payment of all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder (including all such reasonable fees, charges and disbursements of one primary counsel to the Administrative Agent (Agent, paid directly to such counsel if requested by the Administrative Agent).
(c) The Loan Parties’ capital structure and financing plan shall be satisfactory to the extent invoiced one Required Lenders (1) Business Day prior it being agreed and understood that the capital structure and financing plan as set forth in the RSA as in effect on the “RSA Effective Date” as defined in the RSA, and as amended by any amendments consented to in writing by the Required Lenders, shall be deemed satisfactory to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative AgentRequired Lenders).
(d) The Borrower Bankruptcy Court shall have delivered entered the Confirmation Order, in form and substance reasonably satisfactory to the Administrative AgentRequired Lenders, such order shall have become a Final Order and any Lender requesting all conditions to the same, a Beneficial Ownership Certification, effectiveness of the Plan of Reorganization shall have been satisfied or waived in each case at least five accordance therewith.
(5e) Business Days prior Prior to or substantially concurrently with the Closing Date. Without limiting , DIP Credit Agreement (as defined in the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent ABL Credit Agreement) shall have received notice from such Lender prior been terminated and all Obligations (as defined in the DIP Credit Agreement) shall have been paid in full in cash (other than (i) indemnification obligations and other contingent obligations not then due and payable and as to which no claim has been made and (ii) any letters of credit issued thereunder that constitute Existing Letters of Credit (as defined in the proposed Closing Date specifying its objection theretoABL Credit Agreement)).
Appears in 1 contract
Sources: Term Loan Credit Agreement (Parker Drilling Co /De/)
Conditions of Effectiveness. This Agreement shall become effective if, on or before September 18, 2018, all upon the satisfaction of the following conditions precedent have been metset forth in this Section 3:
(a) The Administrative Agent (or its counsel) shall have received from each Borrower and from each other party hereto (including the Administrative Agent's receipt of the following, each Lender and each Voting Participant) an executed signature page counterpart of which this Agreement. CHAR1\1715384v6
(b) The Administrative Agent shall be originalshave received written opinions of counsel for the Borrowers (including any local counsel, "pdfs" or telecopies (followed promptly by originals) unless otherwise specifiedif applicable), each properly executed by a Responsible Officer, each dated the Closing Date (or, in date hereof and as to the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance matters reasonably satisfactory to the Administrative Agent and the Lenders.
(c) The Administrative Agent shall have received each of the Lendersfollowing documents, each of which shall be reasonably satisfactory to the Administrative Agent (and to the extent specified below, to each Lender) in form and substance:
(i) executed counterparts such documents and certificates as the Administrative Agent or its counsel may reasonably request, certified as of this Agreementthe Second Amendment Effective Date as complete and correct copies thereof by the Secretary or an Assistant Secretary of each Borrower relating to (A) the organization, sufficient in number for distribution existence and good standing of such Borrower, (B) the authorization of the execution, delivery and performance by such Borrower of the applicable Loan Documents delivered by it on the Second Amendment Effective Date and of the borrowings thereunder by such Borrower, (C) certificates as to the Administrative Agentincumbency and signature of each individual signing this Agreement and/or any other Loan Document or other agreement or document contemplated hereby and delivered in connection herewith on behalf of the applicable Borrower, each Lender and (D) the absence of any pending proceeding for the dissolution or liquidation of such Borrower or threatening the existence of such Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate certificate signed by the chief executive officer, chief financial officer or a senior vice president of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since December 31, 2019 that, individually or in the date of the Audited Financial Statements that aggregate, has had or could would be reasonably expected toto have, either individually or in the aggregate, have a Material Adverse Effect, ;
(Ciii) a certificate from a Responsible Officer certifying that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, any Responsible Officer threatened in writing in writing, litigation, action or proceeding, including, without limitation, any court Environmental Action, affecting such Borrower or any of its Subsidiaries before any court, governmental agency or arbitrator or Governmental Authority that would could be reasonably be expected likely to have a Material Adverse Effect Effect, excluding for the purposes of this clause (iii) any litigation, actions and proceedings disclosed (Dand solely to the extent disclosed) in writing to the Administrative Agent and the Lenders at least ten (10) days prior to the Second Amendment Effective Date; and
(iv) an officer’s certificate from a financial officer of Rayonier to the effect that no consents, licenses or all material governmental and third-party approvals are required necessary in connection with the consummation transactions contemplated by this Agreement have been received and shall be in full force and effect.
(d) The Lenders shall have received (i) audited consolidated financial statements of Rayonier for the fiscal years ended December 31, 2017, 2018 and 2019 and (ii) financial statement projections through and including the fiscal year ending 2022, together with such additional financial information as the Administrative Agent may reasonably request (including, without limitation, if requested, a detailed description of the assumptions used in preparing such projections). CHAR1\1715384v6
(e) The Administrative Agent shall have received, at least two (2) Business Days prior to the Second Amendment Effective Date, (i) all documentation and other information required by authorities under applicable “Know Your Customer” and Anti-Terrorism and Anti-Corruption Laws and regulations, including, without limitation, the USA PATRIOT Act and (ii) if any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower, in each case, to the extent requested in writing by the Borrower of Administrative Agent at least three (3) Business Days prior to the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;Second Amendment Effective Date.
(xf) the The Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid received on the Second Amendment Effective Date separately agreed to between the Administrative Agent on or before the Closing Date and Rayonier and shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agentreceived, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced in reasonable detail at least one (1) Business Day prior to the Closing Datedate hereof, plus such additional amounts reimbursement or payment of such all reasonable out of pocket expenses (including reasonable fees, charges and disbursements of ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇ PLLC) required to be reimbursed or paid by the Borrowers pursuant to Section 8.04 of the Amended Credit Agreement in connection with the preparation, negotiation, execution and delivery of this Agreement.
(g) Each of the representations and warranties made by each Borrower in or pursuant to the Loan Documents shall be true and correct in all material respects on and as shall constitute its reasonable estimate of the Second Amendment Effective Date as if made on and as of such feesdate (except to the extent applicable to an earlier date, charges in which case such representations and disbursements incurred or warranties shall be true and correct in all material respects as of such earlier date and except to the extent such representations and warranties are qualified by materiality, in which case such representations and warranties shall be incurred by it through true and correct as of the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative AgentSecond Amendment Effective Date).
(dh) The Borrower No Default or Event of Default shall have delivered to occurred and be continuing on the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Second Amendment Effective Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Rayonier Inc)
Conditions of Effectiveness. This Agreement shall become effective if, on or before September 18, 2018, all of when the following conditions precedent have been metsatisfied or waived in accordance with Section 10.01:
(a) The Administrative Agent's receipt Agent shall have received all of the following, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of (A) this Agreement executed by the Borrower, the Administrative Agent and the Lenders listed on the signature pages to this Agreement, sufficient in number for distribution to and (B) the Collateral Agency Joinder Agreement executed by the Borrower and the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the BorrowerBorrower in favor of each Lender requesting a Note reasonably in advance of the Closing Date;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly Agreement Amendment executed by the Borrower parties thereto and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all UCC financing statements and other actions, recordings and filings of documents or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably instruments necessary or reasonably desirable in order advisable to perfect the Liens security interests created therebyby the Pledge Agreement;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Restricted Person as the Administrative Agent may reasonably require require, in form and substance reasonably satisfactory to the Administrative Agent, evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Restricted Person is a party or is to be a party;
(v) Borrower shall have delivered to such documents and certifications as the Administrative Agent may reasonably require to evidence that each Restricted Person is duly organized or formed, and that each Restricted Person is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a certificateMaterial Adverse Effect;
(vi) a favorable opinion of each of (A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Restricted Persons and (B) the General Counsel or Associate General Counsel of ETP, LLC, in each case in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning ; and the Borrower and the Loan Documents as the Required Lenders may reasonably requesthereby requests such counsel to deliver such opinion;
(ixvii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified set forth in Sections 4.02(aSection 4.01(b), (c) and (bd) have been satisfied, shall be true and correct;
(Bviii) that there has been no event or circumstance since the date of Solvency Certificate executed by the Audited Chief Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge Officer of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and ;
(Dix) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a partyInitial Financial Statements;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax customary payoff letters and intellectual property matters withdrawal letters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets respect of the Borrower, indicating among other things that Collateral Agency Agreement in connection with the assets repayment of each indebtedness as described in the Borrower are not subject to any Liens (except for Liens permitted under this Agreement)definition of Refinancing herein; and
(xi) substantially concurrent payoff a Loan Notice in full of all outstanding obligations under the Existing Credit Agreement accordance with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;Section 2.03.
(b) All fees required After giving effect to be paid this Agreement, the Transactions to the Administrative Agent occur on or before the Closing Date and the other transactions contemplated hereby, the Borrower shall not have been paid and all fees required to be paid any Indebtedness for borrowed money or preferred Equity Interests other than (i) the Obligations, (ii) the Senior Note Obligations, (iii) the obligations pursuant to the Lenders Term Loan Credit Agreement, (iv) Indebtedness incurred under agreements and instruments set forth on or before the Closing Date shall have been paidmost recent applicable periodic filing made by the Borrower with the Securities and Exchange Commission and (v) Indebtedness permitted under Section 7.01.
(c) As of the Closing Date, each of the representations and warranties made by any Restricted Person in or pursuant to the Loan Documents shall be true and correct in all material respects (except to the extent any such representation and warranty itself is qualified by “materiality,” “Material Adverse Effect” or similar qualifier, in which case, it shall be true and correct in all respects), as if made on and as of such date, except for any representations and warranties made as of a specified date, which shall be true and correct in all material respects (or in all respects, as applicable) as of such specified date.
(d) At the time of and immediately after giving effect to the Closing Date, no Default or Event of Default shall have occurred and be continuing.
(e) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one at least two (12) Business Day days prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(df) The Borrower Lenders shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case received at least five three (53) Business Days prior to the Closing Date, to the extent requested 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 the USA PATRIOT Act. Without limiting the generality of the provisions of the last paragraph of Section 10.039.04, for purposes of determining compliance with the conditions specified in this Section 4.01Section, each Lender that has signed executed and delivered this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Agreement Amendment shall become effective ifas of the first date (such date being referred to as the “Amendment No. 3 Effective Date”, on or before September 18which date is October 13, 2018, all 2015) when each of the following conditions precedent shall have been metsatisfied:
(a) The Administrative Agent shall have received counterparts of this Amendment duly executed and delivered by (A) the Borrower, (B) the MLP, (C) the Consenting Lender and (D) the Administrative Agent's receipt .
(b) The Administrative Agent shall have received, on behalf of itself and the Lenders, an opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel to the Credit Parties, dated as of the followingAmendment No. 3 Effective Date and addressed to the Administrative Agent and the Consenting Lender, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Administrative Agent and each of the Lenders:
shall have received (i) executed counterparts certificates of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
good standing (ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in such concept exists) from the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence applicable secretary of state of the completion state of all other actionsorganization of each Credit Party, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Credit Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement Amendment and the other Loan Documents to which the Borrower is a party or is to be a party;
(vii) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to dated as of the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Amendment No. 3 Effective Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that Borrower, confirming satisfaction of the conditions specified set forth in Sections 4.02(a3(e) and (bf) have been satisfied, of this Amendment.
(Bd) that there has been no event or circumstance since the date Payment of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, all reasonable fees and expenses due to the knowledge of Administrative Agent and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the “Arranger”) (as agreed to in writing between the Administrative Agent and/or the Arranger and the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect ).
(e) The representations and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower warranties of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower each other Credit Party contained in Section 8 of the Loan Documents Credit Agreement or any other Credit Document shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Amendment No. 3 Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which it case they shall be true and correct in all material respects (and in all respects if any such representation or warranty is a party;already qualified by materiality) as of such earlier date.
(xf) After giving effect to this Amendment, no Default or Event of Default exists, or would result from the effectiveness of this Amendment.
(g) The Administrative Agent shall have received from the results Borrower a consent fee payable for the account of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion)the Consenting Lender, in form and substance reasonably satisfactory thereto, made against the Borrower 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 an amount equal to evidence or perfect security interests in all assets 0.25% of the Borrower, indicating among other things that aggregate principal amount of Commitments held by the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds Consenting Lender as of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing DateAmendment No. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.3
Appears in 1 contract
Conditions of Effectiveness. This Agreement shall become effective if, on or before September 18, 2018, all The effectiveness of this Amendment is subject to the following conditions precedent have been metthat:
(a) The the Administrative Agent's receipt Agent shall have received:
(i) duly executed originals of this Amendment from each of the followingBorrower, the Lenders (or the Administrative Agent with the consent in writing of the Lenders), each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specifiedIncreasing Lender, each properly executed by a Responsible OfficerAssuming Lender, each dated the Closing Date (orif any, in the case of certificates of governmental officials, a recent date before the Closing Date) and each Departing Lender (as defined below), if any;
(ii) duly executed Revolving Notes for the account of each Assuming Lender, if any, and any Increasing Lender, dated as of the Effective Date in a principal amount equal to such Lender’s Revolving Commitment after giving effect to the Revolving Commitment Increase hereunder;
(iii) evidence reasonably satisfactory to it that on or prior to the Effective Date, (x) all obligations of the Borrower under the 5-Year Agreement shall have been terminated and be of no further force or effect (other than in respect of contingent indemnity obligations and any other obligation that expressly survives the termination thereof);
(iv) (x) duly certified resolutions of the Borrower (in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution acceptable to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and authorizing the execution, delivery and performance by of this Amendment and of the Credit Agreement as amended hereby, and (y) opinion(s) of counsel of the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against acceptable to the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunderAdministrative Agent;
(bv) All fees required to be paid to from the Administrative Agent on or before Borrower for its account and the Closing Date shall have been paid and account of each Lender, all fees required payable pursuant to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived that certain Fee Letter, dated as of November 16, 2006, by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between among the Borrower and the Administrative Agent).; and
(dvi) The Borrower shall have delivered to the Administrative Agentsuch other documents, instruments and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless agreements as the Administrative Agent shall reasonably request; and
(b) the Administrative Agent and the Lenders shall have received notice from such Lender prior to administered the proposed Closing Date specifying its objection theretoreallocation of the Revolving Commitments and Term Loans among the Lenders in accordance with their respective ratable shares thereof.
Appears in 1 contract
Conditions of Effectiveness. This Agreement Amendment shall be effective as of December 31, 2005 (except for Sections 1(p), 1(r) and 1(s) of this Amendment which shall become effective ifas of the date first above written) when, and only when, (A) the U.S. Borrower shall have paid, on or before September 18February 23, 20182006, all for the benefit of each Lender executing this Amendment on or before 12:00 Noon Eastern time on February 23, 2006, a fee equal to 0.25% of the Total Exposure Amount of each such Lender, and (B) the Administrative Agent shall have received, on or before February 23, 2006, the following conditions precedent have been met:
(a) The Administrative Agent's receipt of the followingdocuments, each of which shall be originals, "pdfs" or telecopies such document (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each ) dated the Closing Date date of receipt thereof by the Administrative Agent (or, in the case of certificates of governmental officials, a recent date before the Closing Dateunless otherwise specified) and in sufficient copies for each Lender, in form and substance satisfactory to the Administrative Agent: Counterparts of this Amendment executed by each Borrower, each Subsidiary Guarantor and the Required Lenders or, as to any of the Required Lenders, advice satisfactory to the Administrative Agent that such Required Lender has executed this Amendment. Counterparts of the Consent and Confirmation attached hereto executed by each Subsidiary Guarantor. Evidence reasonably satisfactory to the Administrative Agent that any and all expenses of counsel to the Administrative Agent since the date of its last invoice shall have been paid in full in accordance with Section 10.3 of the Credit Agreement. Certified copies of (i) the resolutions of the Board of Directors (or other appropriate governing body) of each Borrower approving this Amendment and the matters contemplated hereby in form and substance customary for the jurisdiction of formation for each such Borrower, (ii) all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Amendment and the matters contemplated hereby (including, without limitation, the Organic Documents for each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender Borrowers); and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreementspecimen of the signature of each Person authorized by each U.K. Obligor to sign this Amendment and the other documents to be delivered hereunder. A certificate of the Secretary or an Assistant Secretary of the U.S. Borrower certifying the names and true signatures of the officers of such Borrower authorized to sign this Amendment and the other documents to be delivered hereunder. A favorable opinion of in-house counsel for the U.S. Borrower, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in effect that (i) this Amendment has been duly executed and delivered by the Administrative Agent's possessionU.S. Borrower and (ii) the Consent and Confirmation attached hereto has been duly executed and delivered by each Subsidiary Guarantor, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
and (B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement U.S. Obligors, as to the matters referred to in Section 3. A favorable opinion of L'Estrange & ▇▇▇▇▇, special Northern Irish counsel for the U.K. Obligors organized under the laws of Northern Ireland, (A) to the effect that this Amendment has been duly executed and delivered by each U.K. Borrower organized under the Administrative Agent may deem reasonably necessary or reasonably desirable laws of Northern Ireland, and (B) as to the matters referred to in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers Section 3. In regard of the Borrower as U.K. Obligors satisfactory company and winding-up search results conducted at the Administrative Agent may reasonably require evidencing Companies Registry and on the identity, authority and capacity central registry of the Companies Court. A certificate signed by a duly authorized officer of each Responsible Officer thereof authorized to act Borrower stating that: All representations and warranties made by such Borrower in Section 3 hereof and in the Credit Agreement (as a Responsible Officer in connection with this Agreement amended hereby) and the other Loan Documents are true and correct in all material respects as of the date hereof as if made on the date hereof (unless stated to which the Borrower is a party or is relate solely to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificatean earlier date, in form which case such representations and substance reasonably satisfactory to the Administrative Agent, warranties shall be true and certified correct in all material respects as accurate by the chief financial officer of Borrower, that (A) such earlier date); and after giving effect to the financing hereunder amendments contemplated by Section 1 above, no Default has occurred and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paidcontinuing.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of this Agreement shall become effective if, on is subject to satisfaction or before September 18, 2018, all waiver of the following conditions precedent have been metprecedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals, "pdfs" originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible OfficerOfficer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, Agreement (it being understood that the Loan Parties agree to deliver after the Closing Date originals sufficient in number for distribution to the Administrative Agent, each Lender and the Borrowerrequesting an originally executed copy of this Agreement);
(ii) a Revolving Credit Note and a and/or Term Note for each requesting Lender Note, as applicable, executed by the BorrowerBorrower(s) in favor of each Lender requesting a Note;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, action and incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party, in each case, as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party or is to be a party;
(viv) Borrower shall have delivered to such documents and certifications as the Administrative Agent a certificate, in form and substance may reasonably satisfactory require to the Administrative Agentevidence that each Loan Party is duly organized or formed, and certified as accurate by the chief financial officer is validly existing and in good standing in its jurisdiction of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIIIorganization;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viiiv) a favorable opinion of Sidley Austin ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Borrower Loan Parties and the Loan Documents as the Required Lenders Administrative Agent may reasonably request;
(ixvi) a certificate of a Responsible Officer of the Parent Borrower either (A) attaching copies of all consents, licenses and approvals (other than the resolutions referenced in clause (iii) above) required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(vii) a certificate signed by a Responsible Officer of the Parent Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected toto have, either individually or in the aggregate, have a Material Adverse Effect, Effect and (C) that there is no action, suit, investigation or proceeding is pending or, to the knowledge of the Borrowerany Loan Party, threatened in writing in any court or before any arbitrator or Governmental Authority that would (1) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (2) could reasonably be expected to have have, either individually or in the aggregate, a Material Adverse Effect Effect;
(viii) a duly completed Compliance Certificate signed by a Responsible Officer of the Parent, giving pro forma effect to the transactions to occur on the Closing Date (including, without limitation, the Combination and all Credit Extensions to occur on the Closing Date and the application of proceeds thereof), but calculated as of the last day of the fiscal quarter ending immediately prior to the Closing Date (Dsuch Compliance Certificate, the “Pro Forma Closing Date Compliance Certificate”);
(ix) that no consents, licenses or approvals are required in connection with the consummation a Solvency Certificate signed by the Borrower chief financial officer or the chief accounting officer of the transaction contemplated hereby and Parent Borrower certifying that, after giving effect to the executiontransactions to occur on the Closing Date (including, delivery and performance by without limitation, all Credit Extensions to occur on the Borrower and the validity against the Borrower of Closing Date), the Loan Documents to which it is Parties and their Subsidiaries, taken as a partywhole and on a consolidated basis, are Solvent;
(x) the financial statements referenced in Section 5.05(a) and (b);
(xi) the Escrow Agreement, executed by the Escrow Agent, the Parent Borrower, each of the Guarantors, each of the Lenders, the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement)L/C Issuers; and
(xixii) substantially concurrent payoff in full of all outstanding obligations under such other assurances, certificates, documents, consents or opinions as the Existing Credit Agreement with Administrative Agent, the proceeds of L/C Issuers or the initial Loans funded hereunder and the termination of all commitments thereunder;Required Lenders reasonably may require.
(b) All Substantially concurrently with the Facilities becoming effective:
(i) the Combination shall be consummated in accordance with applicable Law and regulatory approvals and (i) if effected by way of Scheme, the terms of the Scheme Document (as defined in the Proxy Statement) and (ii) if effected by way of Public Offer, the terms of an offer document to be approved by the Administrative Agent (acting reasonably), but in each case, without giving effect to any amendments or waivers thereof, or consents thereunder, that are materially adverse to the interests of the Lenders or the Arrangers in their respective capacities as such without the prior written consent of the Arrangers, such consent not to be unreasonably withheld, delayed or conditioned;
(ii) all Indebtedness under or in connection with the credit facility provided under the Existing KWE Credit Agreement (including without limitation all unpaid principal, interest, fees, expenses and other amounts owing thereunder or in connection therewith) shall have been repaid in full, all commitments therefor shall have been terminated and all Liens securing, or otherwise arising under or in connection with, such credit facilities shall have been released and terminated;
(c) Any fees required to be paid to the Lenders, the Administrative Agent on or before and the Closing Date shall have been paid and all fees required to be paid to the Lenders Arrangers on or before the Closing Date shall have been paid.
(cd) At least ten Business Days prior to the Closing Date, the Administrative Agent and the Lenders shall have received documentation and other information with respect to each of the Loan Parties which has been requested at least fifteen Business Days prior to the Closing Date and is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA Patriot Act (Title III of Pub. L. 107 56 (signed into law October 26, 2001)) and regulations implemented by the US Treasury’s Financial Crimes Enforcement Network under the Bank Secrecy Act.
(e) Unless waived by the Administrative Agent, the Parent Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agentcounsel) to the extent invoiced one (1) at least two Business Day Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower Borrowers and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.039.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Agreement Amendment shall become be effective ifas of the date first above written when, and only when, (a) the U.S. Borrower shall have paid, on or before September June 18, 20182007, all for the benefit of each Lender executing this Amendment on or before 12:00 Noon Eastern time on June 18, 2007, a fee equal to 0.10% of the Total Exposure Amount of each such Lender and (b) the Administrative Agent shall have received, on or before June 18, 2007, the following conditions precedent have been met:
(a) The Administrative Agent's receipt of the followingdocuments, each of which shall be originals, "pdfs" or telecopies such document (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each ) dated the Closing Date date of receipt thereof by the Administrative Agent (or, in the case of certificates of governmental officials, a recent date before the Closing Dateunless otherwise specified) and in sufficient copies for each Lender, in form and substance satisfactory to the Administrative Agent:
(i) Counterparts of this Amendment executed by each Borrower, each Subsidiary Guarantor and the Required Lenders or, as to any of the Required Lenders, advice satisfactory to the Administrative Agent that such Required Lender has executed this Amendment;
(ii) Counterparts of the Consent and Confirmation attached hereto executed by each Subsidiary Guarantor;
(iii) Evidence reasonably satisfactory to the Administrative Agent that any and each all expenses of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution counsel to the Administrative Agent, each Lender and Agent since the Borrower;date of its last invoice shall have been paid in full in accordance with Section 10.3 of the Credit Agreement; and
(iiiv) A certificate signed by a Revolving Credit Note and a Term Note for duly authorized officer of each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together withstating that:
(A) to the extent not already All representations and warranties made by such Borrower in Section 3 hereof and in the Administrative Agent's possessionCredit Agreement (as amended hereby) and the other Loan Documents are true and correct in all material respects as of the date hereof as if made on the date hereof (unless stated to relate solely to an earlier date, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blankwhich case such representations and warranties shall be true and correct in all material respects as of such earlier date); and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder amendments contemplated by Section 1 above, no Default has occurred and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paidcontinuing.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Agreement Sixth Amendment shall become not be effective if, on or before September 18, 2018, all until the date each of the following conditions precedent have has been metsatisfied:
(a) The Administrative Agent's receipt of the following, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts has received a counterpart of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
Sixth Amendment (iiwhich may be by telecopy or other electronic transmission) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement")MLP, duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificateParties, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIIILenders constituting Required Lenders;
(vib) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) has received a certificate signed by a Responsible Officer of the Borrower certifying that (Ai) that the conditions specified representations and warranties contained in Sections 4.02(a) Article V of the Credit Agreement are true and correct in all material respects on and as of such date (b) have been satisfiedunless such representations and warranties specifically refer to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (Bii) that no Default or Event of Default has occurred and is continuing under the Credit Agreement as of such date, (iii) since December 31, 2016, there has been no event or circumstance since the date of the Audited Financial Statements that has had or could reasonably be reasonably expected to, either individually or in the aggregate, to have a Material Adverse Effect, (Civ) that there is no litigation, investigation or proceeding known to and affecting the Borrower or any affiliate for which the Borrower is required to give notice under the Credit Agreement, and (v) no action, suit, investigation or proceeding is pending or, to the knowledge of the Borrowersuch officer, threatened in writing in any court or before any arbitrator or Governmental Authority by or against the Borrower, any Guarantor, the MLP’s general partner, or any of their respective properties that would could reasonably be expected to have a Material Adverse Effect Effect; and
(c) the Borrower has paid (i) an amendment fee to the Administrative Agent (for the benefit of each Lender party hereto) in an aggregate amount equal to 0.10% of each such Lender’s Commitment as of the date hereof and (Dii) that no consents, licenses or approvals are required in connection with the consummation by Administrative Agent’s reasonable legal fees and expenses to the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents extent invoiced prior to which it is a partyclosing;
(xd) the Administrative Agent shall have has received the results of a Lien search (including a search such other documents as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance may be reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable including a Borrowing Base Certificate and documented out-of-pocket fees, charges and disbursements of one primary counsel Committed Loan Notice (Financed Inventory) with respect to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or Loans deemed to be incurred by it through Inventory Financing Loans on the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)date hereof.
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This The effectiveness of this Agreement shall become effective if, on or before September 18, 2018, all is subject to satisfaction of the following conditions precedent have been metprecedent:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals, "pdfs" originals or e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed by a Responsible OfficerOfficer of the signing Loan Party (to the extent a Loan Party is a party thereto), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this AgreementAgreement executed by each of the parties to this Agreement on the Closing Date, and counterparts of Subsidiary Guaranties executed by (A) each Domestic Subsidiary and (B) each Foreign Subsidiary, if any, that is liable with respect to any Unsecured Indebtedness (other than (1) the Obligations or (2) obligations in respect of the SEB Portfolio-Preferred to the extent such obligations constitute Unsecured Indebtedness), in each case whether as borrower, guarantor or otherwise, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the BorrowerBorrower in favor of each Lender requesting a Note;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable SubsidiaryGrantor(s), together with:
(A) to the extent not already in the Administrative Agent's possessioncertificates or instruments, certificates if any, representing the Collateral pledged equity referred to therein thereunder accompanied by undated stock all endorsements and/or powers executed in blank; andrequired by the applicable Pledge Agreement,
(B) such evidence of that (1) all proper financing statements have been or contemporaneously therewith will be duly filed under the completion Uniform Commercial Code of all other actions, recordings applicable jurisdictions and filings of or with respect to the Pledge Agreement (2) all applicable perfection requirements that the Administrative Agent reasonably may deem reasonably necessary or reasonably desirable in order to perfect the Liens created therebyunder the Pledge Agreement, covering the Collateral described in the Pledge Agreement,
(C) completed requests for information listing all effective financing statements or other perfection requirements filed in the jurisdictions referred to in clause (B) above that name any Domestic Subsidiary as debtor, together with (x) copies of such other financing statements and (y) if any such financing statement covers Collateral, termination statements (or similar documents) for filing in all applicable jurisdictions as may be necessary to terminate any such effective financing statements (or equivalent filings), and
(D) a Perfection Certificate duly executed by each Grantor;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party or is to be a party;
(v) Borrower shall have delivered to such documents and certifications as the Administrative Agent a certificatemay reasonably require to evidence that each Loan Party is duly organized or formed, and is validly existing, in form good standing (if applicable) and substance reasonably satisfactory qualified to engage in business in its jurisdiction of organization and each other jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, extent that (A) after giving effect failure to the financing hereunder and each Loan do so could not reasonably be expected to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIIIhave a Material Adverse Effect;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viiix) a favorable opinion of Sidley Austin ▇▇▇▇▇▇▇▇ Chance US LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Borrower Loan Parties and the Loan Documents as the Required Lenders Administrative Agent may reasonably requestrequest and (y) a favorable opinion of Luxembourg counsel, addressed to the Administrative Agent and each Lender, as to such matters as the Administrative Agent may reasonably request with respect to Pledge Agreements that are governed by Luxembourg law;
(ixvii) a certificate of a Responsible Officer of Holdings or the Borrower, on behalf of itself and each Loan Party, either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(viii) a certificate signed by a Responsible Officer of the Borrower (x) certifying that (A1) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B2) that since the date of the Historical Financial Statements, there has been no event or circumstance since the date of the Audited Financial Statements that has had or could reasonably be reasonably expected toto have, either individually or in the aggregate, have a Material Adverse Effect, Effect and (C3) that there is no action, suit, investigation or proceeding is pending or, to the knowledge of the Borrowerany Loan Party, threatened in writing in any court or before any arbitrator or Governmental Authority that would (A) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (B) could reasonably be expected expected, either individually or in the aggregate, to have a Material Adverse Effect and (Dy) that no consents, licenses or approvals are required in connection with the consummation by the Borrower attaching copies of the transaction contemplated hereby and Organization Documents of each Person whose Equity Interests are included in the executionCollateral, delivery and performance by which Organization Documents shall (1) in the Borrower and the validity against the Borrower reasonable opinion of the Loan Documents to which it is a party;
(x) Administrative Agent, permit the Administrative Agent shall have received to realize on such Collateral upon the results occurrence and during the continuance of a Lien search an Event of Default and (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), 2) otherwise be in form and substance reasonably satisfactory theretoto the Administrative Agent;
(ix) a duly completed compliance certificate as of the last day of the fiscal quarter of Holdings ended on December 31, made against 2016, signed by a Responsible Officer of Holdings, giving pro forma effect to the transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date) and including in reasonable detail the calculations required to establish compliance with the covenants set forth in Section 7.11 (such compliance certificate, the “Pro Forma Closing Date Compliance Certificate”);
(x) a Solvency Certificate from the Borrower under certifying that, after giving effect to the Uniform Commercial Code transactions to occur on the Closing Date (or applicable judicial docketincluding, without limitation, all Credit Extensions to occur on the Closing Date), the Loan Parties and their Subsidiaries, taken as a whole and on a consolidated basis, are Solvent;
(xi) an Approved Appraisal for each Property that is included in the calculation of Consolidated Total Asset Value as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of the BorrowerClosing Date;
(xii) the financial statements referenced in Section 5.05(a) and consolidated forecasted balance sheet and statements of income and cash flows of Holdings and its Subsidiaries on a quarterly basis for the fiscal year ending December 31, indicating among 2017 and on an annual basis for the succeeding two fiscal years;
(xiii) all documentation and other things information that the assets of each Administrative Agent or any Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Borrower are not subject to any Liens (except for Liens permitted under this Agreement)Act; and
(xixiv) substantially concurrent payoff in full of all outstanding obligations under such other certificates, consents and other documents, as the Existing Credit Agreement with Administrative Agent, the proceeds of L/C Issuer, the initial Loans funded hereunder and Swing Line Lender or the termination of all commitments thereunder;Required Lenders reasonably may require.
(b) All Any fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) at least two Business Day Days prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.039.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Agreement shall become effective if, on or before September 18, 2018, and as of the first date (the “Restatement Effective Date”) on which all of the following conditions precedent shall have been metsatisfied:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originalsoriginal, "pdfs" or e-mail (in a .pdf format) or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible OfficerOfficer of the signing Loan Party, each dated the Closing Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Restatement Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender Agreement and the BorrowerGuaranty Agreement;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the BorrowerBorrower in favor of each Lender requesting a Note prior to the Restatement Effective Date;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party or is to be a party;
(viv) Borrower shall have delivered to such documents and certifications as the Administrative Agent a certificatemay reasonably require to evidence that each Loan Party is duly organized or formed, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan Party is validly existing, in good standing and qualified to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as engage in business in its jurisdiction of June 30, 2018 with the covenants contained in Article VIIIincorporation or formation;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viiiv) a favorable opinion of Sidley Austin ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the BorrowerLoan Parties, addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Borrower Loan Parties and the Loan Documents as the Required Lenders Administrative Agent may reasonably request;
(vi) a favorable opinion of in-house counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vii) a favorable opinion of ▇▇▇▇▇▇▇ LLP, local counsel to the Loan Parties in Maryland, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(viii) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying that (A1) that the conditions specified in Sections 4.02(aSection 4.01(d) and (b) Section 4.02 have been satisfied, satisfied and (B2) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding is pending or, to the knowledge of the Borrowerany Loan Party, threatened in writing in any court or before any arbitrator or Governmental Authority related to the credit facility being provided under this Agreement or that would could reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a partyEffect;
(x) a Solvency Certificate from the Administrative Agent shall have received Loan Parties certifying that, after giving effect to the results of a Lien search transactions to occur on the Restatement Effective Date (including a search as including, without limitation, any Credit Extension to judgments, bankruptcy, tax and intellectual property matters in its discretionoccur on the Restatement Effective Date), in form the REIT and substance reasonably satisfactory theretoits Consolidated Subsidiaries, made against the Borrower under the Uniform Commercial Code on a consolidated basis, are Solvent;
(or applicable judicial docketxi) a duly completed Compliance Certificate as in effect in each jurisdiction in which filings or recordations under the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of the BorrowerRestatement Effective Date (giving pro forma effect to the transactions to occur on the Restatement Effective Date, indicating among other things that including, without limitation, all Credit Extensions to occur on the assets Effective Date), signed by a Responsible Officer of each Borrower (such certificate being referred to herein as the Borrower are not subject to any Liens (except for Liens permitted under this Agreement“Pro Forma Restatement Effective Date Compliance Certificate”); and
(xixii) substantially concurrent payoff in full of all outstanding obligations under such other assurances, certificates, documents, consents or opinions as the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;Administrative Agent or either Bookrunner reasonably may require.
(bi) All fees required to be paid to the Administrative Agent and the Bookrunners on or before the Closing Restatement Effective Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before the Closing Restatement Effective Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Agreement Amendment shall become effective ifas of the first date (such date being referred to as the “Amendment No. 6 Effective Date”, on or before September 18which date is March 17, 2018, all 2016) when each of the following conditions precedent shall have been metsatisfied:
(a) The Administrative Agent shall have received counterparts of this Amendment, duly executed and delivered by (i) the Borrower, (ii) Holdings, (iii) the MLP, (iv) Consenting Lenders constituting the Required Lenders and (v) the Administrative Agent's receipt .
(b) The Administrative Agent shall have received, on behalf of itself and the Lenders, an opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel to the Credit Parties, dated as of the following, Amendment No. 6 Effective Date and addressed to the Administrative Agent and each of which shall be originalsthe Lenders, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Administrative Agent and each of the Lenders:
shall have received (i) executed counterparts certificates of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
good standing (ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in such concept exists) from the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence applicable secretary of state of the completion state of all other actionsorganization of each Credit Party, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Credit Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement Amendment and the other Loan Documents to which the Borrower is a party or is to be a party;
(vii) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to dated as of the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Amendment No. 6 Effective Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that Borrower, confirming satisfaction of the conditions specified set forth in Sections 4.02(a2(e) and (bg) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)Amendment.
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from the Borrower a consent fee payable for the account of each Consenting Lender, in an amount equal to 0.25% of the aggregate principal amount of Term Loans held by such Consenting Lender prior to as of the proposed Closing Date specifying its objection thereto.Amendment No. 6
Appears in 1 contract
Conditions of Effectiveness. This Agreement Amendment shall become effective ifas of the Amendment Effective Date when, on or before September 18and only when, 2018, all of the following conditions precedent have been metsatisfied:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals, "pdfs" originals or telecopies (followed promptly by originals) electronic copies unless otherwise specified, each properly executed by a Responsible Officerduly authorized officer of the signing Loan Party, each dated the Closing Amendment Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing Amendment Effective Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the LendersAgent:
(i) executed counterparts of this AgreementAmendment executed by the Original Required Lenders, sufficient in number for distribution to the Administrative AgentNew Lenders, each Lender the Borrower and the BorrowerAgent;
(ii) certified copies of the resolutions of the board of directors or equivalent governing body of each Loan Party approving this Amendment to which it is or is to be a Revolving Credit Note party and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to this Amendment and each Loan Document to which it is a Term Note for each requesting Lender executed by the Borrowerparty;
(iii) a pledge agreementcopy of the certificate of the Secretary of State of the jurisdiction of incorporation or formation, in substantially as the form case may be, of Exhibit E (together with each other pledge agreement supplement delivered in connection therewithLoan Party, in each case as amendeddated reasonably near the Amendment Effective Date, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
certifying (A) as to a true and correct copy of the extent not already charter, article of formation, or such other constitutive document on file in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
such Secretary’s office and (B) that (1) such evidence amendments are the only amendments to such Loan Party’s constitutive documents on file in such Secretary’s office, (2) such Loan Party has paid all franchise taxes to the date of such certificate and (3) such Loan Party is duly incorporated or formed and in good standing or presently subsisting under the laws of the completion State of all other actions, recordings and filings the jurisdiction of incorporation or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created therebyformation;
(iv) a certificate of each Loan Party signed on behalf of such certificates of resolutions Loan Party by its President or other actiona Vice President and its Secretary, incumbency certificates and/or other certificates of Responsible Officers any Assistant Secretary or a duly authorized person, dated the Amendment Effective Date (the statements made in which certificate shall be true on and as of the Borrower Amendment Effective Date), certifying as to (A) the Administrative Agent may reasonably require evidencing absence of any amendments to the identitycharter or applicable constitutive documents of such Loan Party since the date of the Secretary of State’s certificate referred to in Section 4(a)(iii) above, authority (B) a true and capacity correct copy of the bylaws, limited liability company agreement, or partnership agreement of such Loan Party as in effect on the date on which the resolutions referred to in Section 4(a)(iii) above were adopted and on the Amendment Effective Date and (C) the due incorporation or formation and good standing or valid existence of such Loan Party as a corporation, limited liability company or partnership organized or formed under the laws of the jurisdiction of its incorporation or formation and the absence of any proceeding for the dissolution or liquidation of such Loan Party;
(v) a certificate of the Secretary, an Assistant Secretary or a duly authorized person of each Responsible Officer thereof Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to act as a Responsible Officer in connection with this Agreement and the other sign each Loan Documents Document to which the Borrower it is a party or is to be a party;
(v) Borrower shall have party and the other documents to be delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIIIthereunder;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer Officer, or a duly authorized person, of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) of the Amended and Restated Credit Agreement have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(xvii) the Administrative executed opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel to the Loan Parties, addressed to the Agent shall have received the results of a Lien search (including a search and each Lender, substantially as to judgmentsthe matters set forth, bankruptcy, tax and intellectual property matters in its discretion)mutatis mutandis, in form and substance reasonably satisfactory thereto, made against Exhibit H to the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Original Credit Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;.
(b) All fees The New Lenders shall have received, to the extent requested, on or before the date which is five (5) Business Days prior to the Amendment Effective Date, 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.
(c) (x) Any fees, costs and expenses required to be paid to the Administrative Agent on or before the Closing Amendment Effective Date shall to the Agent or any Arranger (i) pursuant to any fee or engagement letters or (ii) otherwise for which invoices have been paid and all fees required to be paid received at least one Business Day prior to the Lenders on or before Amendment Effective Date and (y) an amendment fee to each Original Lender that has executed this Amendment Agreement by the Closing Amendment Effective Date in an aggregate amount equal to 0.25% of such Original Lender’s Commitment immediately prior to the Amendment Effective Date, in each case shall have been paid.
(cd) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least one (1) Business Day prior to the Closing Amendment Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing and customary post-closing proceedings included in such invoices (provided provided, that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(de) The Borrower conversions, payments and repayments specified in Section 6 below shall have delivered to the Administrative Agentbeen completed and made, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoas applicable.
Appears in 1 contract
Conditions of Effectiveness. This Agreement Amendment shall become effective if, on or before September 18, 2018, all as of the first date (such date being referred to as the “Amendment No. 1 Effective Date”) when each of the following conditions precedent shall have been metsatisfied:
(a) The Administrative Agent's receipt of the following, each of which Agent (or its counsel) shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed have received counterparts of this AgreementAmendment signed by the Parent Borrower, sufficient in number for distribution to the U.S. Borrower, the Guarantors, the Administrative Agent, each Lender and the Borrower;Incremental Term A-2 Dollar Lenders.
(iib) a Revolving Credit Note The Administrative Agent shall have received (x) the legal opinion of Ropes & ▇▇▇▇ LLP, counsel to the Loan Parties and a Term Note for each requesting Lender executed by (y) the Borrower;
(iii) a pledge agreementlegal opinion of Smith, in substantially Anderson, Blount, Dorsett, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, L.L.P., North Carolina counsel to the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewithLoan Parties, in each case case, dated as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings Amendment No. 1 Effective Date and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by .
(c) The Administrative Agent shall have received (i) copies of each Organization Document for the chief financial officer of Parent Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, U.S. Borrower and each Subsidiary thereof is each SolventGuarantor, and (B) attached thereto are calculations evidencing compliance as of June 30applicable, 2018 with and, to the covenants contained in Article VIII;
(vi) certificates extent applicable, certified as of a recent date by the appropriate governmental official, each dated the Amendment No. 1 Effective Date or a recent date prior thereto; (ii) signature and incumbency certificates of the good standing officers of the Parent Borrower, the U.S. Borrower and each Subsidiary whose equity securities are subject to Guarantor executing this Amendment; (iii) resolutions of the Pledge Agreement under Board of Directors or similar governing body of the laws Parent Borrower, the U.S. Borrower and each Guarantor approving and authorizing the execution, delivery and performance of this Amendment and certified as of the Amendment No. 1 Effective Date by its secretary, an assistant secretary or other appropriate Person as being in full force and effect without modification or amendment and (iv) if available, a good standing certificate from the applicable Governmental Authority of the Parent Borrower’s, the U.S. Borrower’s and each Guarantor’s jurisdiction of incorporation, organization or formation (or equivalent)formation, as applicable;each dated a recent date prior to the Amendment No. 1 Effective Date.
(viid) written notice by Borrower designating a deposit account acceptable to The Administrative Agent into which and the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed Amendment No. 1 Lead Arrangers shall have been paid all fees payable to the Administrative Agent and each Lenderthe Amendment No. 1 Lead Arrangers, as to customary matters concerning respectively, on the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending orAmendment No. 1 Effective Date and, to the knowledge of extent invoiced at least two (2) Business Days prior to the Borrower, threatened in writing in any court Amendment No. 1 Effective Date (or before any arbitrator or Governmental Authority that would as otherwise reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation agreed by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretionParent Borrower), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees out-of-pocket expenses required to be paid to by the Administrative Agent on or before Parent Borrower in connection with this Amendment, including the Closing Date shall have been paid and all fees required to be paid to Attorney Costs of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, in accordance with Section 10.04 of the Lenders on or before the Closing Date shall have been paidExisting Credit Agreement.
(ce) Unless waived by Prior to or substantially concurrently with the Administrative AgentAmendment No. 1 Effective Date, the Borrower shall have paid all reasonable and documented out-of-pocket feesan upfront fee to JPMorgan, charges and disbursements for the ratable account of one primary counsel the Incremental Term A-2 Dollar Lenders, equal to the Administrative Agent (directly to such counsel if requested 0.25% multiplied by the Administrative Agent) to aggregate principal amount of Incremental Term A-2 Dollar Loans funded by such Incremental Term A-2 Dollar Lenders on the extent invoiced one (Amendment No. 1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This (a) The amendments to the Loan Agreement and the Guaranty set forth herein (other than Section 1(b)) shall become effective ifon the first date on which the Agent shall have received counterparts hereof executed by the Borrower, CSC, the Lender and the Assignee Lenders or, as to any Lender or Assignee Lender, evidence satisfactory to the Agent that such Lender or Assignee Lender, as applicable, has executed this Amendment.
(a) Section 3 and the amendments to the Loan Agreement set forth in Section 1(b) shall become effective on or before September 18, 2018, all of the first date (the “Guarantor Effective Date”) on which the following conditions precedent are satisfied:
(i) The Agent shall have been metreceived the following:
(a) The Administrative Agent's receipt of the following, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender hereof executed by the Borrower, CSC, the Lender and the Assignee Lenders or, as to any Lender or Assignee Lender, evidence satisfactory to the Agent that such Lender or Assignee Lender, as applicable, has executed this Amendment;
(iiib) a pledge agreementan Assumption Agreement executed by the Borrower, CSC and ▇▇▇▇▇▇▇ substantially in substantially the form of Exhibit E (together with Annex I hereto relating to ▇▇▇▇▇▇▇’▇ assumption of the Obligations of CSC under the Loan Agreement and each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Related Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower CSC is a party or is to be a party;
(vc) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial certificate of an authorized officer of Borrower▇▇▇▇▇▇▇, that dated the Guarantor Effective Date, (A) after giving effect certifying the names and true signatures of the officers of ▇▇▇▇▇▇▇ authorized to sign the financing hereunder Assumption Agreement and each Loan any other documents to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 delivered by ▇▇▇▇▇▇▇ in connection with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfiedAssumption Agreement, (B) that there has been no event or circumstance since attaching and certifying the date correctness and completeness of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effectcopies of ▇▇▇▇▇▇▇’▇ Certificate of Incorporation and Bylaws, (C) that there is no action, suit, investigation or proceeding pending or, to attaching and certifying the knowledge correctness and completeness of copies of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower resolutions of the transaction contemplated hereby and Board of Directors or similar governing body of ▇▇▇▇▇▇▇, approving the execution, delivery and performance by of the Borrower Assumption Agreement and the validity against the Borrower of the Loan Documents other Related Agreements to which it ▇▇▇▇▇▇▇ is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to a party and (D) attaching a good standing certificate of ▇▇▇▇▇▇▇ from the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agentstate of its organization, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day dated a recent date prior to the Closing Guarantor Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).;
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least no later than five (5) Business Days in advance of the Guarantor Effective Date, all documentation and other information reasonably requested with respect to ▇▇▇▇▇▇▇ in writing by any Lender or Assignee Lender at least ten (10) Business Days in advance of the Guarantor Effective Date, which documentation or other information is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act; #89281785v11
(e) a certificate of an authorized officer of ▇▇▇▇▇▇▇, dated the Guarantor Effective Date, stating that the representations and warranties of ▇▇▇▇▇▇▇ (after giving effect to the this Amendment including Section 1(b) hereof) contained in Section 10 of the Guaranty are correct;
(f) a favorable legal opinion of in house legal counsel of ▇▇▇▇▇▇▇, dated the Guarantor Effective Date; and
(g) promptly upon filing with the applicable jurisdiction, any certificate of amendment or articles of conversion of ▇▇▇▇▇▇▇ filed on or after the effective date of the amendments to the Loan Agreement and the Guaranty in accordance with Section 2(a) hereof and prior to the Closing Guarantor Effective Date.
(ii) The Merger shall have been consummated on or prior to, or shall be consummated substantially concurrently with, the Guarantor Effective Date. Without limiting Notwithstanding the generality of the provisions of the last paragraph of foregoing and Section 10.032(b) hereof, for purposes the avoidance of determining compliance doubt, to the extent the Merger is not consummated on, prior to, or substantially concurrently with the conditions specified in this Section 4.01Guarantor Effective Date, each Lender that has signed this Agreement the Guarantor Effective Date shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretonot occur.
Appears in 1 contract
Sources: Master Loan and Security Agreement (Computer Sciences Corp)
Conditions of Effectiveness. This The effectiveness of this Agreement shall become effective if, on or before September 18, 2018, all and the amendment and restatement of the Existing Credit Agreement as set forth herein is subject to the following conditions precedent have been metthat:
(a) The Administrative Agent's receipt of the following, each of which shall be originals, "pdfs" originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible OfficerOfficer of the signing Loan Party, each dated the Closing Date (or, in -63- the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the BorrowerBorrower in favor of each Lender requesting a Revolving Credit Note and if requested, a Swing Line Note executed by the Borrower in favor of the Swing Line Lender;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers a secretary or assistant secretary or similar officer of the Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party or is to be a party;
(viv) Borrower shall have delivered to such documents and certifications as the Administrative Agent a certificatemay reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in form good standing and substance reasonably satisfactory qualified to the Administrative Agent, and certified as accurate by the chief financial officer engage in business in its jurisdiction of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIIIincorporation or formation;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viiiv) a favorable customary opinion of Sidley Austin ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary the enforceability of the Loan Documents and other matters concerning reasonably requested by the Administrative Agent;
(vi) a certificate of a Responsible Officer of the Borrower either (A) attaching copies of all third party consents, licenses and approvals required in connection with the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents as the Required Lenders may reasonably requestto which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(ixvii) a certificate signed by a Responsible Officer of the Borrower certifying certifying, as of the Closing Date, (A) that the conditions specified representations and warranties of the Loan Parties set forth in Sections 4.02(a) the Loan Documents are true and correct in all material respects (b) except to the extent that such representation and warranty is qualified by materiality, in which case they shall have been satisfiedtrue and correct in all respects), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, (B) no Default or Event of Default has occurred and is continuing or, after giving effect to the initial Borrowing contemplated hereunder (if any) or the application of proceeds therefrom, immediately would result therefrom; and (C) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected toto have or result in, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(xviii) a certificate signed by the Administrative Agent shall have received chief financial officer of the results of Borrower certifying that the Borrower (on a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretionconsolidated basis with the Subsidiaries), in form and substance reasonably satisfactory theretoafter giving effect to the initial Borrowing contemplated hereunder (if any), made against the Borrower 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 evidence or perfect security interests in all assets application of the Borrowerproceeds thereof and the consummation of the other transactions contemplated hereby, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement)is Solvent; and
(xiix) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on such other assurances, certificates, documents, consents or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by opinions as the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket feesL/C Issuers, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by Swing Line Lender or the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)Required Lenders reasonably may require.
(db) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto[Reserved].
Appears in 1 contract
Conditions of Effectiveness. This Agreement shall become effective ifas of the date when, on or before September 18and only when, 2018, all of the following conditions precedent have been met:satisfied or waived (the “Amendment Effective Date”):
(a) The Administrative Receipt by the Agent (or by the Agent's receipt ’s counsel on its behalf) of counterparts of this Agreement, duly executed by the Company, the Existing Brazilian Term Borrower, the New Brazilian Term Borrower, the Agent, each Brazilian Term A Lender and Lenders constituting the Required Lenders under the Credit Agreement.
(b) Receipt by the Agent (or by the Agent’s counsel on its behalf) of the following, each of which shall be originals, "pdfs" originals or telecopies scanned versions (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each Officer of the LendersNew Brazilian Term Borrower:
(i) executed counterparts a favorable opinion, dated as of this Agreement, sufficient in number for distribution the Amendment Effective Date and addressed to the Administrative Agent, Agent and each Brazilian Term A Lender and from special Brazilian counsel for the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificateBrazilian Companies, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viiiii) a favorable opinion of Sidley Austin LLP, counsel as to the Borrowerenforceability of this Agreement (and of the Credit Agreement, as amended hereby), dated as of the Amendment Effective Date and addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower Lenders from special New York counsel for the Company and the Loan Documents as New Brazilian Term Borrower, in form and substance reasonably satisfactory to the Required Lenders may reasonably requestAgent;
(ixiii) a certificate signed by of a Responsible Officer secretary or assistant secretary (or equivalent position) of the Borrower certifying New Brazilian Term Borrower, together with appropriate attachments which shall include the following items: (A) that a true, complete and correct copy of the conditions specified in Sections 4.02(a) and (b) have been satisfiedarticles of incorporation, certificate of limited partnership, certificate of formation or organization or other constitutive document of the New Brazilian Term Borrower, to the extent applicable, certified by an appropriate Governmental Authority, (B) that there has been no event or circumstance since the date a true, complete and correct copy of the Audited Financial Statements that has had by-laws, partnership agreement or could be reasonably expected to, either individually limited liability company or in operating agreement (or other applicable organizational document) of the aggregate, have a Material Adverse EffectNew Brazilian Term Borrower, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge a certified copy of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower resolutions of the transaction contemplated hereby and board of directors, board of managers or other appropriate entity of the New Brazilian Term Borrower authorizing the execution, delivery and performance by the New Brazilian Term Borrower of this Agreement and the validity against transactions contemplated hereby, and (D) certificates of legal existence and good standing, to the Borrower extent available, of the Loan Documents to which it is a party;New Brazilian Term Borrower issued by an appropriate Governmental Authority; and
(xiv) a certificate from a Responsible Officer of the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion)Company, in form and substance reasonably satisfactory theretoto the Agent and dated as of the Amendment Effective Date, made against certifying that (A) no Default or Event of Default has occurred and is continuing, and (y) the Borrower under representations and warranties set forth in the Uniform Commercial Code (or applicable judicial docket) as Credit Agreement and each other Loan Document are true and correct in effect in each jurisdiction all material respects, except to the extent that such representations and warranties specifically refer to an earlier date, in which filings or recordations under the Uniform Commercial Code should case they shall be made to evidence or perfect security interests true and correct in all assets material respects as of such earlier date and except to the extent that such representations and warranties are already qualified as to materiality, in which case such qualified representations and warranties shall be true and correct; provided that any representations and warranties with respect to the Collateral Documents and related matters specified on Schedule 5.01(m) to the Credit Agreement shall only be required to be true and correct as of the Borrower, indicating among other things that the assets time period specified for execution and effectiveness of each the Borrower are not such Collateral Documents and related matters (and subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff applicable extensions of such time periods which may have been granted in full of all outstanding obligations under the Existing Credit Agreement accordance with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paidterms thereof).
(c) Unless waived As at the Amendment Effective Date, there are no outstanding Loans payable by the Administrative AgentExisting Brazilian Term Borrower, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested or other amounts payable by the Administrative Agent) Existing Brazilian Term Borrower on account of any Loans made to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent)it.
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Agreement shall become effective if, on or before September 18, 2018, and as of the first date (the “Closing Date”) on which all of the following conditions precedent shall have been metsatisfied or waived in accordance with Section 11.01:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals, "pdfs" .pdf copies sent via electronic mail or telecopies telecopied (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible OfficerOfficer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Security Agreement"), duly executed by the Borrower and any applicable Subsidiaryeach Secured Guarantor, together with:
(A) certificates or instruments representing any Equity Interests in each Secured Guarantor (other than Equity Interests in any Secured Guarantor that is not a direct Subsidiary of another Secured Guarantor) and each Subsidiary of the Borrower directly held by any Secured Guarantor, accompanied by all endorsements and/or powers required by the Collateral Documents; provided that, with respect to any such Subsidiary of a Secured Guarantor that is an Excluded Foreign Subsidiary, 100% of the non-voting Equity Interests (if any) shall be required to be pledged by the Secured Guarantors (or such lesser amount that is owned by any Secured Guarantor) and 65% of the voting Equity Interests of such Excluded Foreign Subsidiary (to the extent not already in owned directly by any Secured Guarantor) shall be required to be pledged (and only the Administrative Agent's possession, certificates or instruments representing the pledged equity referred such Equity Interests shall be required to therein accompanied by undated stock powers executed in blank; andbe delivered hereunder),
(B) such evidence of the completion of all other actions, recordings and filings of or (i) a Perfection Certificate with respect to the Pledge Agreement Secured Guarantors dated the Closing Date and duly executed by a Responsible Officer of the Borrower and (ii) certified copies of UCC, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any Secured Guarantor as debtor and that are filed in those state and county jurisdictions in which any Secured Guarantor is organized or maintains its principal place of business and such other searches, if any, that the Administrative Agent reasonably deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Liens permitted to exist pursuant to the terms hereof),
(C) UCC financing statements in proper form for filing, registration or recordation in all jurisdictions that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created therebyunder such Collateral Documents, covering the Collateral described in such Collateral Documents,
(D) (i) the Control Agreements referred to in Section 2.06, duly executed by each of the parties thereto and (ii) the Control Agreements with respect to each Deposit Account or Securities Account in which any Borrowing Base Assets are on deposit and any other Control Agreement required by the Loan Documents, in each case, duly executed by each of the parties thereto and, in each case, other than those referred to in Section 6.21, and
(E) such other agreements and documents, and evidence that all other actions, recordings and filings have been taken, in each case that the Administrative Agent may reasonably deem necessary or desirable in order to create or perfect the Liens created under the Collateral Documents;
(iii) a Note executed by the Borrower in favor of each Lender requesting a Note;
(iv) a Borrowing Base Certificate, as of the Closing Date;
(v) a certificate of each Loan Party dated as of the Closing Date signed by a Responsible Officer of such Loan Party certifying that the condition set forth in Section 4.01(b) is satisfied;
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which the Borrower such Loan Party is a party or is to be a party;
(vvii) Borrower shall have delivered to such documents and certifications as the Administrative Agent a certificatemay reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject qualified to the Pledge Agreement under the laws of engage in business in its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursedformation;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to such matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(ix) a favorable opinion of (A) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Maryland counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary such matters concerning the Borrower and the Loan Documents to which the Borrower is a party as the Required Lenders Administrative Agent may reasonably request, (B) Bilzin, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Price & ▇▇▇▇▇▇▇ LLP, Florida counsel to LNR Partners, LLC, addressed to the Administrative Agent and each Lender, as to such matters concerning LNR Partners, LLC and the Loan Documents to which it is a party as the Administrative Agent may reasonably request, and (C) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇, United Kingdom counsel to the Administrative Agent, addressed to the Administrative Agent and each Lender, concerning enforceability of the English law Loan Document to be delivered on the Closing Date;
(ixx) a certificate signed by of a Responsible Officer of the Borrower certifying each Loan Party either (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date attaching copies of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no all consents, licenses or and approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower such Loan Party and the validity against the Borrower such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;
(xxi) a certificate of a Responsible Officer of the Borrower certifying that the Borrower has delivered true and correct copies of the operating agreements, partnership agreements or other applicable organizational documents of each Borrowing Base Covenant Subsidiary and, subject to Section 6.21, each Unrestricted Real Property Subsidiary;
(xii) the Administrative Agent shall have received the results absence of a Lien search (including a search as to judgmentsany action, bankruptcysuit, tax and intellectual property matters in its discretion)investigation or proceeding, pending or threatened, in form and substance reasonably satisfactory thereto, made against the Borrower under the Uniform Commercial Code (any court or applicable judicial docket) as in effect in each jurisdiction in which filings before any arbitrator or recordations under the Uniform Commercial Code should be made governmental authority that purports to evidence or perfect security interests in all assets of materially affect the Borrower, indicating among other things the Guarantors or any of their respective Subsidiaries, or any transaction contemplated hereby, or that the assets of each could have a material adverse effect on the Borrower are not subject or the Guarantors, or any of their respective Subsidiaries, or any transaction contemplated hereby or on the ability of the Borrower or the Guarantors to any Liens (except for Liens permitted perform its obligations under this Agreement)the Loan Documents; and
(xixiii) substantially concurrent payoff in full of all outstanding obligations under a Solvency Certificate from the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;Loan Parties demonstrating that each Loan Party is Solvent.
(b) All fees required to (A) The representations and warranties contained in Article V and the other Loan Documents shall be paid to the Administrative Agent true and correct in all material respects on or before and as of the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
Date, except (c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agentx) to the extent invoiced one (1) Business Day prior that such representations and warranties specifically refer to the Closing Datean earlier date, plus such additional amounts in which case they are true and correct as of such feesearlier date and (y) any representation or warranty that is already by its terms qualified as to “materiality”, charges “Material Adverse Effect” or similar language shall be true and disbursements correct in all respects as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or date after giving effect to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agentqualification, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5B) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement no Default shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoexist.
Appears in 1 contract
Conditions of Effectiveness. This Agreement Amendment shall become effective ifas of the first date (such date being referred to as the “Amendment No. 4 Effective Date”, on or before September 18which date is March 11, 2018, all 2016) when each of the following conditions precedent shall have been metsatisfied:
(a) The Administrative Agent shall have received counterparts of this Amendment duly executed and delivered by (A) the Borrower, (B) the MLP, (C) the Consenting Lender and (D) the Administrative Agent's receipt .
(b) The Administrative Agent shall have received, on behalf of itself and the Lenders, an opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel to the Credit Parties, dated as of the followingAmendment No. 4 Effective Date and addressed to the Administrative Agent and the Consenting Lender, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Administrative Agent and each of the Lenders:
shall have received (i) executed counterparts certificates of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
good standing (ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in such concept exists) from the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence applicable secretary of state of the completion state of all other actionsorganization of each Credit Party, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Credit Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement Amendment and the other Loan Documents to which the Borrower is a party or is to be a party;
(vii) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to dated as of the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Amendment No. 4 Effective Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that Borrower, confirming satisfaction of the conditions specified set forth in Sections 4.02(a2(e) and (bf) have been satisfied, of this Amendment.
(Bd) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation Payment by the Borrower of the transaction contemplated hereby all reasonable fees and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid expenses due to the Administrative Agent on or before and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the Closing Date shall have been paid and all fees required to be paid “Arranger”), including, to the Lenders on extent invoiced, reimbursement or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid payment of all reasonable and documented out-of-pocket feesexpenses (including the legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(de) The representations and warranties of the Borrower and each other Credit Party contained in Section 8 of the Credit Agreement (as amended hereby) or any other Credit Document shall have delivered be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Amendment No. 4 Effective 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 (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date.
(f) After giving effect to this Amendment, no Default or Event of Default exists, or would result from the effectiveness of this Amendment.
(g) With respect to any parcel of improved Mortgaged Property, a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each applicable Credit Party) together with a copy of, or certificate as to coverage under, and a declaration page relating to, the insurance policies required by Section 9.03 of the Credit Agreement (including, without limitation, flood insurance policies) and the applicable provisions of the Security Documents, each of which (i) shall be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payee or mortgagee endorsement (as applicable), (ii) shall name the Collateral Agent, on behalf of the Guaranteed Creditors, as additional insured, (iii) in the case of flood insurance, shall (a) identify the address of each property located in a special flood hazard zone, (b) indicate the applicable flood zone designation, the flood insurance coverage for buildings and contents and the deductible relating thereto and (c) provide that the insurer will give the Collateral Agent 45 days’ written notice of cancellation or non-renewal if permitted by applicable law and (iv) shall be otherwise in form and substance satisfactory to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Agreement Amendment shall become effective ifas of the first date (such date being referred to as the “Amendment No. 5 Effective Date”, on or before September 18which date is March 17, 2018, all 2016) when each of the following conditions precedent shall have been metsatisfied:
(a) The Administrative Agent shall have received counterparts of this Amendment duly executed and delivered by (A) the Borrower, (B) the MLP, (C) the Consenting Lender and (D) the Administrative Agent's receipt .
(b) The Administrative Agent shall have received, on behalf of itself and the Lenders, an opinion from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special New York counsel to the Credit Parties, dated as of the followingAmendment No. 5 Effective Date and addressed to the Administrative Agent and the Consenting Lender, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Administrative Agent and each of the Lenders:
shall have received (i) executed counterparts certificates of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
good standing (ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in such concept exists) from the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence applicable secretary of state of the completion state of all other actionsorganization of each Credit Party, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower each Credit Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement Amendment and the other Loan Documents to which the Borrower is a party or is to be a party;
(vii) Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to dated as of the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Amendment No. 5 Effective Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that Borrower, confirming satisfaction of the conditions specified set forth in Sections 4.02(a2(e) and (bf) have been satisfied, of this Amendment.
(Bd) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation Payment by the Borrower of the transaction contemplated hereby all reasonable fees and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid expenses due to the Administrative Agent on or before and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the Closing Date shall have been paid and all fees required to be paid “Arranger”), including, to the Lenders on extent invoiced, reimbursement or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid payment of all reasonable and documented out-of-pocket feesexpenses (including the legal fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, charges and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(de) The representations and warranties of the Borrower and each other Credit Party contained in Section 8 of the Credit Agreement (as amended hereby) or any other Credit Document shall have delivered be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality) on and as of the Amendment No. 5 Effective 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 (and in all respects if any such representation or warranty is already qualified by materiality) as of such earlier date.
(f) After giving effect to this Amendment, no Default or Event of Default exists, or would result from the effectiveness of this Amendment.
(g) With respect to any parcel of improved Mortgaged Property, a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each applicable Credit Party) together with a copy of, or certificate as to coverage under, and a declaration page relating to, the insurance policies required by Section 9.03 of the Credit Agreement (including, without limitation, flood insurance policies) and the applicable provisions of the Security Documents, each of which (i) shall be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payee or mortgagee endorsement (as applicable), (ii) shall name the Collateral Agent, on behalf of the Guaranteed Creditors, as additional insured, (iii) in the case of flood insurance, shall (a) identify the address of each property located in a special flood hazard zone, (b) indicate the applicable flood zone designation, the flood insurance coverage for buildings and contents and the deductible relating thereto and (c) provide that the insurer will give the Collateral Agent 45 days’ written notice of cancellation or non-renewal if permitted by applicable law and (iv) shall be otherwise in form and substance satisfactory to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Conditions of Effectiveness. This Agreement shall become effective if, on or before September 18, 2018, all The effectiveness of this Amendment (the “Amendment No. 1 Effective Date”) is subject to the satisfaction of the following conditions precedent have been metprecedent:
(a) The Administrative Agent's receipt Agent shall have received counterparts of (i) this Amendment duly executed by the Borrowers, the Required Lenders, each Revolving Lender increasing its Revolving Commitment pursuant to this Amendment, each 2015 Term Lender (as defined in the Amended Credit Agreement), each New Lender, the Issuing Bank, the Swingline Lender and the Administrative Agent and (ii) the Consent and Reaffirmation attached hereto duly executed by the Subsidiary Guarantors.
(b) The Administrative Agent shall have received favorable written opinions (addressed to the Administrative Agent and the Lenders and dated the Amendment No. 1 Effective Date) of (i) Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Loan Parties, and (ii) the General Counsel of the followingCompany, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution its counsel and covering such matters relating to the Administrative Agent, each Lender and the Borrower;
(ii) a Revolving Credit Note and a Term Note for each requesting Lender executed by the Borrower;
(iii) a pledge agreement, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amendedLoan Parties, the "Pledge Agreement")Loan Documents, duly executed by this Amendment or the Borrower and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower Transactions as the Administrative Agent may shall reasonably require evidencing request. The Company hereby requests such counsels to deliver such opinions.
(c) The Administrative Agent shall have received (i) a certificate signed by the identityChief Executive Officer, authority and capacity a Vice President or a Financial Officer of each Responsible Officer thereof authorized the Company certifying that, after giving effect to act as a Responsible Officer this Amendment, the Company is in connection compliance with this the covenants contained in Section 6.07 of the Credit Agreement and the (ii) such other Loan Documents to which the Borrower is a party or is to be a party;
(v) Borrower shall have delivered to documents and certificates as the Administrative Agent a certificateor its counsel 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 such Loan Parties, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received, for the account of each applicable Lender party hereto that delivers its executed signature page to this Amendment by no later than the date and time specified by the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect an upfront fee in an amount equal to the financing hereunder and each Loan amount previously disclosed to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;Lenders.
(vie) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the The Administrative Agent shall have received the results payment of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xi) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all ’s and its affiliates’ fees and reasonable and documented out-of-pocket fees, charges expenses (including reasonable out-of-pocket fees and disbursements expenses of one primary counsel to the Administrative Agent (directly to such counsel if requested by counsels for the Administrative Agent) to in connection with this Amendment and the extent invoiced other Loan Documents, and for which invoices have been presented at least one (1) Business Day prior to the Closing Amendment No. 1 Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(df) The Borrower Administrative Agent shall have delivered administered such reallocations, sales, assignments, transfers (or other relevant actions in respect) of each Lender’s Applicable Percentage of the relevant Class of Credit Exposure under the Credit Agreement (including the New Lenders) as are necessary in order that each relevant Class of Credit Exposure with respect to such Lender reflects such Lender’s Applicable Percentage of such Class of Credit Exposure under the Administrative AgentCredit Agreement as amended hereby. The Company hereby agrees to compensate each Lender for any and all losses, costs and expenses incurred by such Lender in connection with the sale and assignment of any Lender requesting Eurocurrency Loans and the same, a Beneficial Ownership Certificationreallocation described in this clause (f), in each case at least five (5) Business Days prior to on the Closing Date. Without limiting terms and in the generality manner set forth in Section 2.16 of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoCredit Agreement.
Appears in 1 contract
Conditions of Effectiveness. This Agreement The effectiveness of this Amendment is subject to the conditions precedent that:
a) the Administrative Agent shall become effective ifhave received counterparts of (i) this Amendment duly executed by the Borrower, on or before September 18the Approving Lenders (which shall constitute the “Required Lenders” as defined in the Credit Agreement) and the Administrative Agent, 2018(ii) a joinder to the Guaranty duly executed and delivered by EQM GP Corporation, all together with the documentation contemplated for additional Guarantors in Section 6.10(a) of the following conditions precedent have been met:
Credit Agreement, (aiii) The Administrative Agent's receipt of the following, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each an intercreditor agreement in form and substance reasonably satisfactory acceptable to the Administrative Agent Borrower and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender duly executed and delivered by the representative of the secured parties under the Term Loan Agreement and the Borrower;
other parties thereto, (iiiv) a Revolving Credit Note and a Term Note for each requesting Lender executed by fee letters among the Borrower;
(iii) a pledge agreement, PNC Capital Markets, LLC and PNC Bank, in substantially form and substance reasonably acceptable to the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case as amended, Borrower and the "Pledge Agreement")Administrative Agent, duly executed and delivered by the Borrower parties thereto, and any applicable Subsidiary, together with:
(A) to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied by undated stock powers executed in blank; and
(B) such evidence of the completion of all other actions, recordings and filings of or with respect to the Pledge Agreement that the Administrative Agent may deem reasonably necessary or reasonably desirable in order to perfect the Liens created thereby;
(iv) such certificates of resolutions modifications, supplements and amendments to the Collateral Documents as may be reasonably required by the Administrative Agent, in its sole discretion, to conform such Collateral Documents for any additional property upon which Liens are granted under, or other action, incumbency certificates and/or other certificates terms and provisions that are more restrictive under the comparable collateral documents securing Debt arising under the Term Loan Agreement;
b) the representations and warranties contained in Section 4 of Responsible Officers this Amendment shall be true and correct in all respects as of the Effective Time;
c) contemporaneous with the Effective Time, the term loan described in and governed by the Term Loan Agreement shall be made to the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which Initial Acquisition shall be consummated with the Borrower is a party or is to be a partyproceeds of such term loan;
(vd) Borrower the Term Loan Agreement shall have delivered to the Administrative Agent a certificate, be in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each Solvent, and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with the covenants contained in Article VIII;
(vi) certificates as of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation (or equivalent), as applicable;
(vii) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
(ix) a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could be reasonably expected to, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority that would reasonably be expected to have a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower of the Loan Documents to which it is a party;
(x) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against the Borrower 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 evidence or perfect security interests in all assets of the Borrower, indicating among other things that the assets of each the Borrower are not subject to any Liens (except for Liens permitted under this Agreement); and
(xie) substantially concurrent payoff in full of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder and the termination of all commitments thereunder;
(b) All fees required to be paid to the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable fees and documented out-of-pocket fees, charges and disbursements of one primary counsel other amounts required to be paid by the Borrower on or prior to the Administrative Agent (directly Effective Time pursuant to such counsel if requested by the Administrative Agent) Credit Agreement and the Fee Letters to the extent such fees and other amounts are invoiced one (1) Business Day prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
(d) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five three (53) Business Days prior to the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 10.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection theretoEffective Time.
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