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 and Waiver shall become effective ifas of the date first above written when, and only when, on or before 5:00 p.m. (New York City time) on September 1829, 20181998, all of the following conditions precedent shall have been met:
satisfied; (ax) 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 no Default shall have delivered to the Administrative Agent a certificate, in form occurred and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, that be continuing at such time (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 waiver set forth 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(aSection 2) 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;
(xy) the Administrative Agent shall have received (a) counterparts of (i) this Amendment and Waiver executed by the results of a Lien search (including a search Borrower and the Required Lenders or, as to judgmentsany of the Lenders, bankruptcyadvice satisfactory to the Administrative Agent that such Lender has executed this Amendment and Waiver and (ii) the consent attached hereto executed by each Loan Party (other than the Borrower), tax (b) certified copies of the resolutions of the Board of Directors of the Borrower and intellectual property matters in its discretion)each other Loan Party approving this Amendment and Waiver and the transactions contemplated hereby 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 Waiver and the transactions contemplated hereby, (c) a favorable opinion of Wachtell, Lipton, Rosen & Katz, special counsel for the Loan Parties, 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 subst▇▇▇▇ sat▇▇▇▇ctory to the Administrative Agent on or before the Closing Date shall have been paid Agents, 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 an amendment fee for the account of each Lender approving this Amendment and Waiver in an amount for each such Lender equal to the Administrative Agent, product of (i) such Lender's Commitments (whether used or unused) and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5ii) Business Days prior 0.25%. This Amendment and Waiver is subject to the Closing Date. Without limiting the generality of the provisions of Section 8.01 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 theretoCredit Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Amf Bowling Inc), Credit Agreement (Amf Bowling Worldwide Inc)
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 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 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 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 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 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 (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 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 The effectiveness of this Agreement shall become effective if, on or before September 18, 2018, all and the obligation of each Term Lender to make its Term Loan 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" 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, the Borrower’s Instruction Certificate and the Borrower Remittance Instructions, 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 executed by the Borrower in favor of each Revolving Credit Lender requesting a Revolving Credit Note and a Term Note for each requesting Lender executed by the BorrowerBorrower in favor of each Term Lender requesting a Term Note;
(iii) a pledge agreementduly completed Borrower’s Instruction Certificate executed by a Responsible Officer of the 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 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, and that each Loan Party is validly existing, in form good standing and substance qualified to engage in business in (A) its jurisdiction of organization and (B) 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 Material Adverse Effect;
(v) favorable opinions addressed and reasonably satisfactory to the Administrative Agent, the Issuing Banks and certified as accurate by the chief financial officer of BorrowerLenders, 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 from counsel reasonably 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 LenderAgent, as to customary the 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 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;
(vii) 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 December 31, 2016 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 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 a Material Adverse Effect and (D) that no consents, licenses or approvals are required in connection with the consummation by the Borrower a calculation of the transaction contemplated hereby and the execution, delivery and performance by the Borrower and the validity against the Borrower ratio of Total Indebtedness to Total Asset Value as of the last day of the fiscal quarter of the REIT ended September 30, 2017;
(viii) a Solvency Certificate from the REIT 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), each Loan Documents Party is, individually and together with its Subsidiaries on a consolidated basis, Solvent;
(ix) a duly completed compliance certificate, giving pro forma effect to which it is a partythe transactions to occur on the Closing Date (including, without limitation, all Credit Extensions to occur on the Closing Date);
(x) the Administrative Agent shall have received the results of duly completed Borrower Remittance Instructions signed by 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 Responsible Officer of the Borrower;
(xi) the financial statements referenced in Section 5.05(a) and (b);
(xii) evidence that each of the Existing BANA Credit Agreement, indicating among other things that the assets of Existing PNC Credit Agreement and the Existing WFB Credit Agreement and all documents entered into in connection with each the Borrower are not subject to any Liens such agreement, shall have been terminated in full (except for Liens permitted under this Agreement)to the extent that provisions of any such document by its express terms survives termination thereof) and all unpaid principal, interest, fees, expenses and other amounts owing thereunder or in connection therewith (other than any contingent obligation not yet due and payable) shall have been paid in full and all commitments thereunder shall have been terminated, or concurrently with the Closing Date is being, terminated and paid in full; and
(xixiii) 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, any L/C Issuer, the proceeds of Swing Line Lender, the initial Loans funded hereunder and Required Lenders or the termination of all commitments thereunder;Required Term Lenders reasonably may require.
(b) All Any fees required hereunder or under the Fee Letters 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) Completion of all due diligence with respect to the REIT, the Borrower, and their respective Subsidiaries and properties in scope and determination satisfactory to the Administrative Agent, the Bookrunner, the Arrangers and the Lenders in their sole discretion.
(d) 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 (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 and the Administrative Agent).
(de) The Borrower shall have delivered to the Administrative Agent, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at At least five (5) ten Business Days prior to the Closing Date, the Administrative Agent and each Lender shall have received documentation and other information with respect to each of the Loan Parties that is required, in the Administrative Agent’s or such Lender’s judgment, by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including 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 notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 2 contracts
Sources: Credit Agreement (Acadia Realty Trust), Credit Agreement (Acadia Realty Trust)
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 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 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 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 Amendment shall become effective ifas of the date first above written when, and only when, the Agent shall have received (a) counterparts of this Amendment executed by the Borrowers and the Required Lenders, (b) an amendment fee equal to 0.25% of the aggregate Commitments of each Lender that provides a counterpart signature page to this Amendment on or before September 18, 2018, prior to the date hereof and (c) all of 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 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 reasonably satisfactory to the Administrative Agent (unless otherwise specified) and in sufficient copies for each of the LendersLender:
(i) executed counterparts A copy, certified by the Secretary or Assistant Secretary or other Authorized Representative of each Borrower, of the resolutions of its Board of Directors (and resolutions of other bodies, if any are reasonably deemed necessary by counsel for any Lender) authorizing the execution of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender Amendment 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 performance 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 Credit Agreement and the other Loan Documents to which the Borrower is a party or is to be a partyexecuted by it, each as amended hereby;
(vii) An incumbency certificate, executed by the Secretary or an Assistant Secretary or other Authorized Representative of each Borrower, which shall identify by name and title and bear the signature of the officers of such Borrower shall have delivered authorized to sign this Amendment;
(iii) A certificate, signed by an Authorized Officer stating that (A) no Default or Unmatured Default has occurred and is continuing, and (B) the representations and warranties contained in Article 6 are true and correct in all material respects; and
(iv) Written opinions of counsel to each Borrower given upon the express instructions of each Borrower, addressed to the Administrative Agent a certificateand each of the Lenders, 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 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 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 Amendment is subject to the provisions of Section 14.11 of the 2005 Credit Agreement. Section 1 of this Agreement shall become effective ifas of the date first above written (the “Amendment Effective Date”) when and only when, on or before September 18January 9, 20182009, all of the following conditions precedent Administrative Agent shall have been metreceived:
(a) The Notice from the administrative agent under the 2004 Credit Agreement that all commitments thereunder have been terminated and that all amounts payable or accrued under such credit agreement have been paid in full.
(b) A security agreement in substantially the form of Annex B hereto (the “Security Agreement”), duly executed by each Credit Party and each Subsidiary listed on Schedule I hereto (collectively with the Credit Parties, the “Granting Parties”), together with:
(i) acknowledgment copies or stamped receipt copies of financing statements, duly filed on or before the Amendment Effective Date under the Uniform Commercial Code of all jurisdictions that the Administrative Agent's receipt Agent may reasonably request in order to perfect and protect the liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement,
(ii) the results of a search of the following, each of which shall be originals, "pdfs" Uniform Commercial Code (or telecopies (followed promptly by originalsequivalent) unless otherwise specified, each properly executed by a Responsible Officer, each dated filings made with respect to the Closing Date (or, Collateral Grantors in the case jurisdictions contemplated by clause (i) above and copies of certificates of governmental officials, a recent date before the Closing Datefinancing statements (or similar documents) and each disclosed by such search.
(c) A Canadian security agreement 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 SubsidiaryJ▇▇▇▇ Apparel Group Canada, LP, 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 with evidence of such filings and other actions required under the completion laws of all other actions, recordings and filings of or with respect to the Pledge Agreement applicable jurisdiction that the Administrative Agent may deem reasonably necessary or reasonably desirable request in order to perfect the Liens liens and security interests created thereby;thereunder.
(ivd) 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 certificate from 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 certificateOfficer, in form and substance reasonably satisfactory to the Administrative Agent, to the effect that all representations and certified warranties of the Borrower contained in the 2005 Credit Agreement are true, correct and complete in all material respects with the same effect as accurate by if made on and as of the chief financial officer Amendment Effective Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of Borrowersuch earlier date); that the Borrower is not in violation of any of the covenants contained in the 2005 Credit Agreement, that (A) as amended hereby; that, after giving effect to the financing hereunder transactions contemplated by this Amendment, no Default or Event of Default has occurred and is continuing; and that each of the conditions to the effectiveness of this Amendment has been satisfied or waived (assuming satisfaction of the Administrative Agent where not advised otherwise).
(e) A certificate of the secretary, assistant secretary or general counsel of the Borrower, each Additional Obligor and each other Grantor (as defined in the Security Agreement) certifying as to the incumbency and genuineness of the signature of each officer of such Person executing this Amendment or each other Loan Document to which it is a party and certifying that attached thereto is a true, correct and complete copy of resolutions duly adopted by the Board of Directors of such Person authorizing, in the case of the Borrower, the borrowings contemplated under the 2005 Credit Agreement, as amended hereby, and in the case of each such Person, the execution, delivery and performance of this Amendment or the Loan Documents to which it is 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;a party.
(vif) certificates as Favorable opinions of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject I▇▇ ▇. ▇▇▇▇▇▇, General Counsel to the Pledge Agreement under the laws of its jurisdiction of incorporationBorrower, organization or formation (or equivalent)Cravath, 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 Swaine & M▇▇▇▇ LLP, special counsel to the Borrower, S▇▇▇▇▇▇▇ H▇▇▇▇▇▇▇ ▇▇▇▇▇ & L▇▇▇▇ LLP, Pennsylvania counsel to the Borrower, and Drinker B▇▇▇▇▇ & R▇▇▇▇ LLP, New Jersey counsel to the Borrower, C▇▇▇▇▇▇ ▇▇▇▇▇ & B▇▇▇▇▇▇▇▇, Canadian counsel to the Borrower, and such other opinions as may be agreed, addressed to the Administrative Agent and each Lenderthe Lenders with respect to the Borrower, as to customary matters concerning the Borrower and the Loan Documents and such other matters as the Required Lenders may shall 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.
(cg) Unless waived by the Administrative Agent, the The Borrower shall have paid all reasonable accrued fees and documented out-of-pocket fees, charges expenses of the Joint Lead Arrangers and disbursements of one primary counsel to Joint Bookrunners and the Administrative Agent (directly to such including the accrued fees and expenses of counsel if requested by the Administrative Agent) to the extent invoiced one (1Joint Lead Arrangers and Joint Bookrunners) Business Day prior and the amendment fees payable 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)Lenders for which invoices have been received.
(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. 5 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 (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. 5 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. 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(a3(e) and (bf) 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 Payment of all reasonable fees and expenses due to the Administrative AgentAgent and ▇▇▇▇▇▇▇ Lynch, and any Lender requesting Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the same, a Beneficial Ownership Certification, “Arranger”) (as agreed to 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 writing between the Administrative Agent and/or the Arranger and the Borrower).
(e) The representations and warranties of the Borrower and each other Credit Party contained in Section 8 of the Credit Agreement or any other Credit Document shall have received notice from be true and correct in all material respects (and in all respects if any such Lender prior representation or warranty is already qualified by materiality) on and as of the Amendment No. 5 Effective Date, except to the proposed Closing Date specifying its objection theretoextent 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.
Appears in 1 contract
Conditions of Effectiveness. This Agreement 3.1 The consent set forth in Article I hereof shall become effective ifas of the date (the “Consent Effective Date”) when, on or before September 18and only when, 2018the Administrative Agent shall have received an executed counterpart hereof from each of the Credit Parties and the Required Lenders.
3.2 The amendments set forth in Article II hereof shall become effective as of the date (the “Second Amendment Effective Date”) when, all and only when, each of the following conditions precedent shall have been metsatisfied:
(a) The Administrative Agent's receipt Agent shall have received evidence reasonably satisfactory to it that the closing of the following, each Redomestication Transactions in accordance with the Scheme of which shall be originals, "pdfs" Arrangement has occurred without any amendment or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (ormodification thereto that, in the case reasonable determination 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 would be adverse in any material respect to the rights or interests of the Lenders, including without limitation, copies of all court orders and governmental certificates and orders sanctioning the Borrowerconsummation of the Redomestication Transactions;
(iib) The Administrative Agent shall have received 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) legal opinion from counsel 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 certificateCredit Parties, in form and substance reasonably satisfactory to the Administrative Agent, and certified addressing such matters 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;
(ixc) The Administrative Agent shall have received a certificate 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)each Credit Party, in form and substance reasonably satisfactory theretoto the Administrative Agent, made against certifying that no Default or Event of Default exists, both immediately before and after giving effect to this Second Amendment;
(d) The Administrative Agent shall have received a certificate of the Borrower under secretary, an assistant secretary or other appropriate officer of Swiss Holdings, in form and substance reasonably satisfactory to the Uniform Commercial Code Administrative Agent, certifying (i) that attached thereto is a true and complete copy of the Articles of Association and all amendments thereto of Swiss Holdings, certified as of a recent date by the appropriate Governmental Authority of its jurisdiction of organization, and that the same has not been amended since the date of such certification, and (ii) that attached thereto is a true and complete copy of resolutions adopted by the board of directors (or applicable judicial docketsimilar governing body) of Swiss Holdings authorizing the execution, delivery and performance of this Second Amendment and its joinder to the Unsecured Credit Agreement as in effect in each jurisdiction in which filings or recordations under a Guarantor, and as to the Uniform Commercial Code should be made to evidence or perfect security interests in all assets incumbency and genuineness of the Borrower, indicating among other things that the assets signature of each officer of Swiss Holdings executing this Second Amendment or any of the Borrower are not subject to any Liens other Credit Documents, and attaching all such copies of the documents described above;
(except for Liens permitted under this Agreement)e) On the Second Amendment Effective Date, the representations and warranties set forth in Article IV hereof shall be true and correct; and
(xif) substantially concurrent payoff in full of all outstanding obligations under the Existing The 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 Parties shall have paid all reasonable and documented out-of-pocket fees, charges costs and disbursements expenses 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 connection with the conditions specified in preparation, negotiation, execution and delivery of this Section 4.01Second Amendment (including, each Lender that has signed this Agreement shall be deemed to have consented towithout limitation, 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 reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection with respect thereto).
Appears in 1 contract
Sources: Credit Agreement (Allied World Assurance Co Holdings, AG)
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 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 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. 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 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 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 a Solvency Certificate from the Loan Parties demonstrating that each Loan Party is Solvent.
(A) The representations and warranties contained in full of Article V and the other Loan Documents shall be true and correct in all outstanding obligations under the Existing Credit Agreement with the proceeds material respects on and as of the initial Loans funded hereunder Closing Date, except (x) to the extent that such representations and the termination 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 all commitments thereunder;respects as of such date after giving effect to such qualification, and (B) no Default shall exist.
(bc) 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.
(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 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 and the Administrative Agent).
(de) The Borrower Administrative Agent and the Lenders shall have delivered to the Administrative Agentreceived, and any Lender requesting the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days prior to the Closing Date (or such later date as may be acceptable to the Administrative Agent in its sole discretion), to the extent requested at least ten (10) Business 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.
(f) The Administrative Agent and the Lenders shall have received the Audited Financial Statements and the Unaudited Financial Statements.
(g) The Administrative Agent shall have received satisfactory evidence that (i) that certain Credit Agreement, dated as of April 19, 2013, among the Borrower, the guarantors party thereto, the lenders party thereto, and Credit Suisse AG, as administrative agent (as amended, supplemented or otherwise modified prior to the Closing Date), shall have been terminated and all amounts thereunder shall have been paid in full and (ii) satisfactory arrangements shall have been made for the termination of all guarantees and Liens granted in connection therewith. 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 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 Second Amendment shall become effective if, on or before September 18, 2018, all the date (such date being referred to as the “Second Amendment Effective Date”) on which each of the following conditions precedent have been metis satisfied:
(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 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 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 Second Amendment duly executed by the Borrower;, the Lenders, the Fronting Bank, the Swingline Lender and the Administrative Agent.
(iiib) The Administrative Agent shall have received a pledge agreementcertificate, in substantially signed by an Authorized Officer of the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewithBorrower, in each case as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
certifying that (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 representations 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 warranties of the Borrower as contained in 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 Credit Agreement and the other Loan Credit Documents to which the Borrower is a party are true and correct in all material respects (or is to be a party;
(v) Borrower shall have delivered to the Administrative Agent a certificateif qualified by materiality or Material Adverse Effect, in form all respects) as of the Second Amendment Effective Date, both immediately before 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 Second Amendment (except to be advanced on the Closing Date, Borrower and each Subsidiary thereof extent any such representation or warranty 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 expressly stated to have been made as of a recent date of the good standing of Borrower specific date, in which case such representation or warranty shall be true and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization or formation correct in all material respects (or equivalentif qualified by materiality or Material Adverse Effect, in all respects) as of such date), 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 no Default or Event of Default has been no event or circumstance since occurred and is continuing, both immediately before and after giving effect to the date 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 Effecttransactions contemplated hereby, (C) that there is no actionchange, suit, investigation occurrence or proceeding pending or, development shall have occurred or become known to the knowledge of the BorrowerBorrower since December 31, threatened in writing in any court or before any arbitrator or Governmental Authority 2015 that would could reasonably be expected to have a Material Adverse Effect Effect, and (D) all conditions precedent to the Second Amendment Effective Date set forth in this Article II have been satisfied or waived as required thereunder.
(c) The Administrative Agent shall have received, for the account of each Lender party hereto that delivers its executed signature page to this Second Amendment by no consentslater than the date and time specified by the Administrative Agent, licenses or approvals are required an upfront fee in connection with an amount equal to the consummation amount previously disclosed to the Lenders and agreed upon 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;in writing.
(xd) the The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the results date of a Lien search (this Second Amendment, including a search as with respect to judgments, bankruptcy, tax and intellectual property matters in its discretion), in form and substance reasonably satisfactory thereto, made against any fee letters executed by 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 Borrowerconnection with this Second Amendment, 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 including, 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 extent invoiced, payment and/or reimbursement of the Administrative Agent, the Borrower shall have paid all ’s reasonable and documented out-of-pocket fees and expenses (including, to the extent invoiced, reasonable fees, charges and disbursements 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 and the Administrative Agent)in connection with this Second 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 such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Unum Group)
Conditions of Effectiveness. This (a) The Agreement shall become effective if, on or before September 18, 2018, as of the Amendment No. Four 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 Borrower;Parent; and
(iii) a pledge agreementthe receipt by Administrative Agent of the payment, in substantially the form of Exhibit E (together with each other pledge agreement supplement delivered in connection therewithimmediately available funds, 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 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, 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 Amendment shall become effective ifas of the first date (such date being referred to as the “Amendment No. 1 Effective Date”, on or before September 18which date is March 26, 2018, all 2014) when each of the following conditions precedent shall have been metsatisfied:
(a) The Administrative Agent shall have received this Amendment, duly executed and delivered by (A) the Borrower, (B) Holdings, (C) the Guarantors, (D) the Additional Term B-1 Lender and (E) the Administrative Agent's receipt .
(b) The Administrative Agent shall have received a Committed Loan Notice not later than 5:30 p.m. (New York, New York time) on the Business Day prior to the requested date of the followingAmendment No. 1 Effective Date.
(c) The Administrative Agent shall have received, each on behalf of which shall be originalsitself, "pdfs" or telecopies (followed promptly by originals) unless otherwise specifiedthe Second Lien Collateral Agent and the Lenders, each properly executed by a Responsible Officeran opinion from Ropes & ▇▇▇▇ LLP, each New York counsel for the Loan Parties, dated as of the Closing Amendment No. 1 Effective Date (orand addressed to the Administrative Agent, in the case of certificates of governmental officialsSecond Lien Collateral Agent and the Lenders, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each of the Lenders:Agent.
(id) executed counterparts The Administrative Agent shall have received such (x) 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 Loan 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 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;
(vy) 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. 1 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 Borrower, confirming (Ai) satisfaction of the conditions set forth in Sections 4(f) and (g) and (ii) that the Term B-1 Loans meet the requirements and conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since to the date Other Term Loans under Section 2.15 of the Audited Financial Statements that has had or could be reasonably expected toCredit Agreement and related definitions thereunder (including, either individually or in without limitation, the aggregate, have a Material Adverse Effect, definition of “Credit Agreement Refinancing Indebtedness”).
(Ce) that there is no action, suit, investigation or proceeding pending or, to the knowledge Payment 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) all reasonable fees and expenses due to the Administrative Agent shall have received and the results of a Lien search Arrangers (including a search as agreed to judgments, bankruptcy, tax in writing between the Administrative Agent and/or the Arrangers and intellectual property matters in its discretionthe 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 case required to be paid to on the Administrative Agent on or before the Closing Amendment No. 1 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 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) two Business Days prior to the Closing Amendment No. 1 Effective Date and (y) the Effectiveness Fee to the Lenders party to Amendment No. 1 on the Amendment No. 1 Effective Date, which shall be netted against Term B-1 Loans made by such Lenders. Without limiting Substantially simultaneous with effectiveness, the generality Term Lenders (excluding the Additional Term B-1 Lender in its capacity as such) under the existing Credit Agreement shall have been paid (x) all accrued principal and interest on their Initial Term Loans to, but not including, the Amendment No. 1 Effective Date and (y) the prepayment premium pursuant to Section 2.05(a)(iv) of the provisions Credit Agreement.
(f) The representations and warranties of the last paragraph Borrower and each other Loan Party contained in Article V of Section 10.03the Credit Agreement and any other Loan Document shall be true and correct in all material respects on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(g) No Default shall exist, or would result from the effectiveness of this Amendment or from the application of the proceeds thereof.
(h) The Administrative Agent (or its counsel) shall have received a Note executed by Borrower 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 requests such a Lender unless the Administrative Agent shall have received notice from such Lender Note at least two Business Days prior to the proposed Closing Date specifying its objection theretoAmendment No. 1 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 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 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 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 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 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):
(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 Agent 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 date of the last invoice of counsel to the Administrative Agent), shall have been paid in full.
(d) With respect to the amendments set forth in Section 1 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, for the pro rata benefit of each of the Lenders that executes this Amendment on or prior to the Effective Date, 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 theretoEffective Date.
Appears in 1 contract
Sources: Credit Agreement (Perkinelmer Inc)
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 amendments to the Credit Agreement set forth in Section 2 of this Amendment shall become be effective ifon the Amendment Effective Date, on or before September 18, 2018, all of provided that the following conditions precedent Administrative Agent shall have been metreceived the following:
(a) The Administrative Agent's receipt a counterpart 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:
parties hereto (i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrowerwhich may be by telecopy transmission);
(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;
(ivb) such certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officers of the Borrower Officer 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 Amendment;
(c) a certificate from the other Loan Documents to which appropriate governmental authority in the Borrower’s state of organization evidencing that the Borrower is in good standing, and a party certificate of a Responsible Officer certifying that no amendments have been made to the Borrower’s Organization Documents since January 24, 2003, or is to be if such amendments have been made, certifying a partycopy of such amendments;
(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;
(ixd) a certificate signed by of 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 financial statements dated as of December 31, 2004 delivered pursuant to Section 6.01(a) of the Credit Agreement which 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 Effect;
(e) an opinion of counsel to the Borrower with respect to the Credit Agreement as amended, substantially in the form attached as Exhibit E to the Credit Agreement;
(f) all arrangement and (D) that no consents, licenses or approvals are upfront fees and expenses of the Arranger required in connection with the consummation to be paid by the Borrower of concurrently with 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 Effective Date; 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 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 L/C Issuer, or the Required Lenders reasonably may require 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)timely request.
(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 Agreement shall become effective if, on or before September 18, 2018, as of the Effective Date of this Agreement 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 Borrowers shall have delivered to Administrative Agent fully executed copies of any Investor Notes executed in connection with the increase in Parent Subordinated Debt contemplated hereunder and a Term Note for each requesting Lender executed by the Borrowersame shall be in full force and effect, and shall be satisfactory in all respects to Administrative Agent;
(iii) a pledge agreement, in substantially Administrative Agent shall have received evidence that the form full proceeds of Exhibit E (together with each other pledge agreement supplement delivered in connection therewith, in each case the additional Parent Subordinated Debt contemplated hereunder received by Parent shall have been contributed as amended, the "Pledge Agreement"), duly executed by the Borrower and any applicable Subsidiary, together with:
(A) equity to the extent not already capital of Danimer Holdings in the form and substance satisfactory to 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 each of the Borrower representations and warranties contained in Section 6 of this Agreement shall be true, correct and accurate as of the date of this Agreement; and
(v) the receipt by Administrative Agent may reasonably require evidencing of the identitypayment, authority in immediately available funds, of all reasonable out-of-pocket fees, costs, charges and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer expenses incurred by Administrative Agent 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, 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 (Live Oak Acquisition Corp)
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 Amendment shall become effective if, on or before September 18, 2018, all and be deemed effective as of the following conditions precedent have been metEffective Date, if and only if:
(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 Lendersshall have received:
(i) duly executed counterparts copies of this Agreement, sufficient in number for distribution to Amendment from the Administrative AgentBorrower, each Lender and the BorrowerAgents;
(ii) a Revolving Credit Note certificate as to the good standing of the Borrower and any Executing Entity as of a Term Note for each requesting Lender executed by recent date, from the Borrowerapplicable Governmental Authority of its jurisdiction of organization;
(iii) the results of 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 search of the completion of all other actions, recordings and Uniform Commercial Code filings of (or equivalent filings) made 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 actionBorrower, incumbency certificates and/or other certificates of Responsible Officers together with copies of the Borrower as the Administrative Agent may reasonably require evidencing the identityfinancing statements (or similar documents) disclosed by such search, 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 in the chief financial officer states (or other jurisdictions) set forth in Appendix 3 of Borrower, that the Credit Agreement;
(iv) a certificate of a Borrower Responsible Officer (A) after giving effect certifying as to the financing hereunder and each Loan continued effectiveness of the matters set forth in the closing certificate delivered pursuant to be advanced on Section 4.02(b) of the Closing Date, Borrower and each Subsidiary thereof is each Solvent, Credit Agreement and (B) attached thereto are calculations evidencing compliance as of June 30, 2018 with setting forth the covenants contained information required pursuant to Appendix 3 or confirming that there has been no change in Article VIII;
(vi) certificates as of a recent such information since the date of the good standing Credit Agreement or the date of Borrower and each Subsidiary whose equity securities are subject the most recent certificate delivered pursuant to the Pledge Agreement under the laws this Section 2.03(g)(iii); and
1 1 As of its jurisdiction of incorporationDecember 7, organization or formation (or equivalent), as applicable;2020.
(viiv) written notice by Borrower designating a deposit account acceptable to Administrative Agent into which the proceeds copies of Loans are to be disbursed;
(viii) a favorable opinion of Sidley Austin LLP, counsel to the Borrower, addressed to all additional documents and certificates as the Administrative Agent and each Lender, as to customary matters concerning the Borrower and the Loan Documents as the Required Lenders or its counsel may reasonably request;
(ixb) a certificate signed by a Responsible Officer no Default or Event of Default shall have occurred and be continuing or shall result from the execution of this Amendment;
(c) each of the Borrower certifying Specified Conditions set forth in clauses (A) that the conditions specified in Sections 4.02(aa), (c) and (bd) in the definition thereof shall 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;
(xd) the Administrative Agent Risk Ratio shall have received the results of a Lien search (including a search as be less than or equal 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)20%; and
(xie) substantially concurrent payoff (i) in full the case of all outstanding obligations under Tranche L Loans, the Existing Credit Agreement with Tranche L Draw Condition shall be satisfied, (ii) in the proceeds case 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 AgentTranche S Loan, 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 Tranche S Draw Condition shall be deemed to have consented tosatisfied and (iii) in the case of Tranche U Loans, approved or accepted or to the Tranche U Draw Condition shall 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: Credit Agreement (Predex)
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 Agreement shall become effective if, on The effectiveness of this First Amendment (including the amendments contained in Section 1 and agreements contained in Section 2) are subject to the satisfaction (or before September 18, 2018, all written waiver) of the following conditions precedent have been met:(the date of satisfaction of such conditions being referred to herein as the "First Amendment Effective Date"):
(a) The Administrative Agent's receipt of the following, each of which This First Amendment shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly have been duly executed by a Responsible Officerthe Borrowers, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) Guarantors and each in form and substance reasonably satisfactory to the Administrative Agent (which may include a copy transmitted by facsimile or other electronic method), and each of the Lenders:
(i) executed counterparts of this Agreement, sufficient in number for distribution delivered to the Administrative Agent, each and the Administrative Agent shall have received Lender and Consents from Continuing Term Lenders whose Existing Term Loans, when taken together with the New Term Loan commitment of the New Term Lender, are in an amount equal to the aggregate principal amount of the New Term Loan commitments;
(b) The Administrative Agent shall have received a favorable opinion of Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, U.S. counsel to the Borrower;
(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 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 shall have received a certificate signed by a Responsible Officers Officer of the Borrower as to the Administrative Agent may reasonably require evidencing the identity, authority matters set forth in paragraph (f) of this Section 3 and capacity paragraph (b) 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 partySection 4 below;
(vd) Borrower The Administrative Agent shall have delivered received a certificate dated as of the First Amendment Effective Date of the secretary or an assistant secretary or director (or such other officer reasonably acceptable to the Administrative Agent a certificateAgent) of each Loan Party and each European Borrower (to the extent applicable thereto), in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate by the chief financial officer of Borrower, certifying (i) that either (A) after giving effect attached thereto is a true and complete and up to date copy of the financing hereunder Organizational Documents for such Person, certified as of a recent date by the appropriate Governmental Authority of its jurisdiction of organization (where applicable), and each Loan to be advanced that the same has not been amended since the date of such certification or (B) the Organizational Documents of such Person delivered on the Closing DateDate to the Administrative Agent have not been amended and are in full force and effect, Borrower (ii) that attached thereto is a true and each Subsidiary thereof complete copy of resolutions adopted by the board of directors or other comparable governing body or bodies of such Person and, if applicable all the holders of the issued shares of such Person, authorizing and approving the execution, delivery and performance of this First Amendment and any related Loan Documents to which it is each Solventa party, which are in full force and effect without amendment or supersession as of the date of the certificate, and (iii) either (A) as to the incumbency and genuineness of the signature of each officer, director or other comparable authorized manager or attorney of such Person executing this First Amendment or any of such other Loan Documents or (B) attached thereto are calculations evidencing compliance that each of the Persons identified to the Administrative Agent on the Closing Date as a duly elected and qualified officer of June 30such Loan Party or European Borrower continues to be a duly elected and qualified officer of such Loan Party or European Borrower, 2018 with as applicable, and each such Person is duly authorized to execute and deliver on behalf of such Loan Party or European Borrower, as applicable, the covenants contained in Article VIIIFirst Amendment and any other Loan Documents, and attaching all such copies of the documents described above;
(vie) certificates The Administrative Agent shall have received a certificate as of a recent date of the good standing of Borrower each of the Loan Parties and each Subsidiary whose equity securities are subject to the Pledge Agreement European Borrowers under the laws of its jurisdiction of incorporationorganization, organization or formation from the appropriate Governmental Authority of such jurisdiction (or equivalentwhere available in such jurisdiction), as applicable;
(viif) written notice by Borrower designating a deposit account acceptable No Default or Event of Default has occurred and is continuing both before and immediately after giving effect to Administrative Agent into which the proceeds of Loans are to be disbursedtransactions contemplated hereby;
(viiig) a favorable opinion The representations and warranties of Sidley Austin LLPeach Borrower and each of the Guarantors set forth in Section 4 of this First Amendment are true and correct;
(h) All fees and expenses of Deutsche Bank Securities, counsel to the Borrower, addressed to Inc. and the Administrative Agent and each Lender, as required to customary matters concerning be paid or reimbursed pursuant to Section 10.04 of the Borrower and Credit Agreement shall have been paid in full in cash or will be paid in full in cash on the Loan Documents as the Required Lenders may reasonably requestFirst Amendment Effective Date;
(ixi) a certificate signed by a Responsible Officer The Borrowers shall have, substantially concurrently with the effectiveness of this First Amendment, paid to all (x) Non-Consenting Term Lenders all accrued interest, fees and other Obligations (other than principal and all other amounts paid to such Non-Consenting Term Lenders under Section 2 above), if any, to such Non-Consenting Term Lenders under the Borrower certifying Credit Agreement and the other Loan Documents (A) that immediately prior to the conditions specified in Sections 4.02(aeffectiveness of this First Amendment) and (by) have been satisfied, Consenting Term Lenders all accrued interest to such Consenting Term Lenders under the Credit Agreement (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, immediately prior to the knowledge effectiveness 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;this First Amendment); and
(xj) the The Administrative Agent shall have received a Request for Credit Extension in accordance with the results requirements of a Lien search (including a search as to judgmentsSection 4.01 of the Credit Agreement. Notwithstanding the foregoing, bankruptcy, tax and intellectual property matters the amendments contained in its discretionSection 1(c), Section 1(d) and Section 1(j) are intended to correct jointly identified technical errors, and such amendments will automatically become effective 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 accordance with Section 10.01 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 as long as 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 Required Lenders 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 not objected in writing 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 amendments within five (5) Business Days prior to following receipt of this proposed Amendment (and (x) the Closing Date. Without limiting the generality initial distribution of this proposed Amendment on August 12, 2016 constituted written notice of the provisions proposed amendments contained in Section 1(d) and Section 1(j) and (y) the distribution of this proposed Amendment on August 18, 2016 constitutes written notice of the last paragraph of proposed amendments contained in Section 10.031(c), in each case, for purposes of determining compliance with Section 10.01 of 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 Credit Agreement). The Administrative Agent agrees that it shall notify the Borrower in writing promptly following the end of such periods in the event that the Required Lenders have received notice from objected in writing to such Lender prior to the proposed Closing Date specifying its objection theretoamendments.
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. 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 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 (except as expressly provided in clause (b) below) shall be originals, "pdfs" e-mails (in a .pdf format) or telecopies (in each case, followed promptly by originals) unless otherwise specified, each properly executed originals to the extent requested by a Responsible Officer, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing DateAdministrative Agent) 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 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:parties hereto;
(Ab) an originally executed Note for each new Lender, if any, with a Term B Loan Commitment on the Second Amendment Effective Date (to the extent not already in the Administrative Agent's possession, certificates representing the pledged equity referred to therein accompanied requested 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 therebyLender);
(ivc) 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 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;
(vd) 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;
(vie) certificates opinions of ▇▇▇▇▇▇▇ Procter LLP 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 Loan Parties as to the Administrative Agent and each Lender, as to customary matters concerning the Borrower Loan Parties, this Agreement and the other Loan Documents as the Required Lenders Administrative Agent may reasonably request;; and
(ixf) a certificate signed by a Responsible Officer of the Borrower certifying to the effect that (Ai) that the conditions specified in Sections 4.02(a) 3.2 and (b) 3.3 have been satisfied, and (Bii) that there has been no event has occurred and is continuing which constitutes an Unmatured Default.
3.2 The representations and warranties contained in Section 4 of this Agreement are true and correct to the extent provided in Section 4 of this Agreement.
3.3 There shall not have occurred since December 31, 2021, 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 Effect.
3.4 The Administrative Agent and (D) each Lender shall have received all documentation and other information 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 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 the results of a Lien search (including a search as to judgmentsU.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 Amendment Agreement shall become effective ifas of the date (the “Third Amendment 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 Agent shall have received an executed counterpart hereof from each of the Borrowers and the Required Lenders.
(b) The Administrative Agent shall have received the following, each dated as of which shall be originals, "pdfs" or telecopies the Third Amendment Effective Date (followed promptly by originals) unless otherwise specified), each properly executed by a Responsible Officer, each dated the Closing Date (or, and in the case such number of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to copies as the Administrative Agent and each of the Lendersshall have requested:
(i) executed counterparts to the extent requested by any Lender in accordance with Section 2.4(d) of this the Amended Credit Agreement, sufficient in number a Note or Notes for distribution to the Administrative Agent, each Lender and the Borrowersuch Lender;
(ii) a Revolving Credit Note an executed counterpart of the Consent, Reaffirmation, and a Term Note for Agreement of Guarantor from each requesting Lender executed by the BorrowerGuarantor;
(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 completed and executed by the Borrower and any applicable SubsidiaryCredit Parties, together with:
(A) to with any certificates evidencing the extent not already in Capital Stock being pledged thereunder as of the Administrative Agent's possessionThird Amendment Effective Date and undated assignments separate from certificate for any such certificate, certificates representing the pledged equity referred to therein accompanied by undated stock powers duly executed in blank; and
(Biv) such evidence Assignments and Grants of Security Interests for the federally registered Intellectual Property referred to in Annexes D, E and F of the completion Security Agreement, in substantially the form of all other actions, recordings Exhibits B and filings of or with respect C (as applicable) to the Pledge Agreement that the Security Agreement, in each case duly completed and executed by each applicable Credit Party.
(c) 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 shall have received a certificate of the Borrower as the Administrative Agent may reasonably require evidencing the identity, authority and capacity secretary or an assistant secretary of each Responsible Officer thereof authorized to act Credit Party executing any Credit Documents as a Responsible Officer in connection with this Agreement of the Third Amendment Effective Date, dated the Third Amendment Effective Date 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, certifying (i) 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 is a true and complete copy of June 30the articles or certificate of incorporation, 2018 with the covenants contained in Article VIII;
(vi) certificates certificate of formation or other organizational document and all amendments thereto of such Credit Party, certified as of a recent date by the Secretary of the good standing of Borrower and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws State (or comparable Governmental Authority) of its jurisdiction of incorporationorganization, 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 same has not been satisfied, (B) that there has been no event or circumstance amended 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 Effectsuch certification, (Cii) that there attached thereto is no action, suit, investigation or proceeding pending or, to the knowledge a true and complete copy of the Borrowerbylaws, threatened operating agreement or similar governing document of such Credit Party, as then in writing effect and as in any court or before any arbitrator or Governmental Authority that would reasonably be expected effect at all times from the date on which the resolutions referred to have a Material Adverse Effect in clause (iii) below were adopted to and including the date of such certificate, and (Diii) that no consents, licenses or approvals are required in connection with the consummation attached thereto is a true and complete copy of resolutions adopted by the Borrower board of the transaction contemplated hereby and directors (or similar governing body) of such Credit Party, authorizing the execution, delivery and performance by the Borrower of this Agreement and the validity against the Borrower of the Loan other Credit Documents to which it is a party;, and as to the incumbency and genuineness of the signature of each officer of such Credit Party executing this Agreement or any of such other Credit Documents, and attaching all such copies of the documents described above.
(xd) The favorable opinions of (A) Skadden , Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the Credit Parties, and (B) local counsel to the Credit Parties in such jurisdictions as may be reasonably requested by the Administrative Agent shall have received the results of a Lien search (including a search as to judgmentsAgent, bankruptcy, tax and intellectual property matters in its discretion), all in form and substance reasonably satisfactory thereto, made against to the Borrower under the Administrative Agent.
(e) The Administrative Agent shall have received certified reports from an independent search service satisfactory to it listing any tax lien filing or Uniform Commercial Code financing statement that names any Credit Party as debtor in the state of incorporation or formation of such Credit Party, and the results thereof shall be reasonably satisfactory to the Administrative Agent.
(or applicable judicial docketf) as The Administrative Agent shall have received evidence in effect form and substance satisfactory to it that all filings, recordings, registrations and other actions (including, without limitation, the filing of duly completed UCC-1 financing statements in each jurisdiction in which filings listed on Annex A to the Security Agreement) necessary to perfect the Liens created by the Security Documents shall have been completed, or recordations under arrangements satisfactory to the Uniform Commercial Code should be made to evidence or perfect security interests in all assets of Administrative Agent for 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); andcompletion thereof shall have been made.
(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 The Borrowers shall have paid to the Administrative Agent on or before Agent, for the Closing Date benefit of each Lender who approves this Amendment a nonrefundable amendment fee in the amount of 0.50% of the sum of each such approving Lender’s final allocated Term Loan and Revolving Credit Commitment, which fee shall be deemed fully earned as of the Third Amendment Effective Date.
(h) The Borrowers shall have been paid and all fees required to be paid to the Lenders on or before Arranger and Wachovia the Closing Date shall have been paidother fees required under the engagement letter from the Arranger and Wachovia to the Borrowers, dated as of April 14, 2009.
(ci) Unless waived by the Administrative Agent, the Borrower The Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges costs and disbursements expenses 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 connection with the conditions specified in preparation, negotiation, execution and delivery of this Section 4.01Amendment Agreement (including, each Lender that has signed this Agreement shall be deemed to have consented towithout limitation, 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 reasonable and documented fees and out-of-pocket expenses of counsel for the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection with respect 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:
date first written above (the “Effective Date”) when, and only when, (a) The the Administrative Agent's receipt Agent shall have received all fees (including, without limitation, all upfront fees) payable by the Borrowers pursuant to that certain proposal letter agreement, dated October 5, 2011, among Union Bank, the Borrowers, UniSource Energy and Tucson Electric Power Company (the “Proposal Letter”), together with, to the extent invoiced, reimbursement or payment of the following, each all reasonable fees and out-of-pocket disbursements 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 counsel to the Administrative Agent and each other out-of-pocket expenses 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 required to be a party;
(v) Borrower shall have delivered reimbursed or paid by the Borrowers pursuant to the Administrative Agent a certificateProposal Letter, 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) all requisite Governmental Authorities and third parties, if any, shall have been satisfied, (B) that there has been no event approved 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, consented 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 Obligors of this Amendment and the validity against Amended Agreement and the Borrower transactions contemplated thereby (collectively, the “Transactions”) to the extent required and material (and the Administrative Agent shall have received copies, certified by an Authorized Officer of the applicable Obligor to be true, correct and complete and in full force and effect, of all such approvals and consents, which shall be in form and substance satisfactory to the Administrative Agent and the Lenders), no stay of any applicable regulatory approval shall have been issued and there shall be no litigation or governmental, administrative or judicial action, actual or, to the knowledge of the Obligors, threatened, that could reasonably be expected to restrain, prevent or impose burdensome conditions on this Amendment, the Amended Agreement, any of the other Loan Documents to which it is a party;
or the Transactions, and (xc) the Administrative Agent shall have received received: (i) counterparts of this Amendment executed by all of the results parties hereto (in sufficient quantity for each party to have a fully executed original), and (ii) all of a Lien search (including a search as to judgmentsthe following documents, bankruptcy, tax and intellectual property matters in its discretion)each document being dated the Effective Date unless otherwise specified below, in form and substance satisfactory to the Administrative Agent and in the number of originals or photostatic copies reasonably satisfactory theretorequested by the Administrative Agent:
(A) a favorable written opinion (addressed to the Administrative Agent, made against the Borrower under Issuing Banks and the Uniform Commercial Code Lenders) of (or applicable judicial docket1) as in effect ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP, New York counsel for the Obligors, and (2) ▇▇▇▇ ▇. ▇▇▇▇▇, Esq., General Counsel for the Guarantor and counsel for the Borrowers, in each jurisdiction case covering such customary matters relating to this Amendment, the Amended Agreement and the Transactions as the Administrative Agent shall reasonably request, and the Obligors hereby request such counsel to deliver such opinions;
(B) such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Obligors, the authorization of the Transactions, and any other legal matters relating to the Obligors, this Amendment, the Amended Agreement or the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel;
(C) a certificate (the statements in which filings or recordations under shall be true), signed by an Authorized Officer of each Obligor, certifying that:
(1) the Uniform Commercial Code should be made to evidence or perfect security interests in all assets representations and warranties of the BorrowerObligors set forth in this Amendment, indicating among the Amended Agreement and the other things that Loan Documents are true and correct on and as of the assets Effective Date with the same effect as though made on and as of each such date, except to the Borrower are not subject extent such representations and warranties expressly relate to any Liens an earlier date (except for Liens permitted under this Agreementin which case such representations and warranties were true and correct as of such earlier date); and
(xi2) substantially concurrent payoff in full both before and after giving effect to this Amendment, no Default or Event of all outstanding obligations under the Existing Credit Agreement with the proceeds of the initial Loans funded hereunder Default has occurred and the termination of all commitments thereunder;is continuing; and
(bD) 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 a certificate, signed by the Administrative Agentan Authorized Officer of each Obligor, 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 confirming compliance with the conditions specified set forth 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 thereto2.
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 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 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 shall become effective if, on or before September 18, 2018, all the date that the Signature Pages (as defined in the Escrow Agreement) are released from escrow in accordance with the terms of the following conditions precedent have been metEscrow Agreement:
(a) The Administrative Agent's ’s receipt of the following, each of which shall be originals, "pdfs" email (in a .pdf format) or telecopies (followed promptly by originals) unless otherwise specified, each properly executed (if applicable) 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 in favor of each Lender requesting a Note;
(iii) in each case, solely with respect to Collateral required to be granted on the Closing Date (and for the avoidance of doubt and notwithstanding anything to the contrary herein, excluding as Collateral the Equity Interest of the Operating Partnership and any direct or indirect owner thereof) a pledge agreement, in substantially the form of Exhibit E agreement (together with each other pledge agreement supplement delivered in connection therewithpursuant to Section 2.18(a), in each case as amended, the "“Pledge Agreement"”), duly executed by the Borrower and any applicable SubsidiaryGrantors, 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 Pledge Agreement,
(B) evidence that (x) all proper financing statements have been or contemporaneously therewith will be duly filed under the Uniform Commercial Code of all applicable jurisdictions and (y) all applicable perfection requirements that the Administrative Agent reasonably 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 Grantor 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;
(E) 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;
(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 Agentextent that failure to do so would not, and certified as accurate by individually or in the chief financial officer of Borroweraggregate, that (A) after giving effect reasonably be expected 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 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 ▇▇▇▇▇▇▇▇ Chance US LLP, counsel to the Loan Parties, and ▇▇▇▇▇▇▇ LLP, special Maryland counsel to the Borrower, 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;
(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 that (A1) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B2) that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could would reasonably be reasonably expected toto have, either individually or in the aggregate, have a Material Adverse Effect, (C3) that there the Borrower is not subject to any present or contingent Environmental Claim which, if adversely determined, would reasonably be expected to have a Material Adverse Effect on the Borrower, and (4) 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 (A) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (B) would 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 if any, 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 thereto, made against to the Administrative Agent;
(ix) a fully completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower under the Uniform Commercial Code (or applicable judicial docket) most recently ended 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 Closing Date ended for which financial statements of each the Borrower are not subject available, giving pro forma effect to any Liens the transactions to occur on the Closing Date (except for Liens permitted under this Agreementincluding, 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 and setting forth a calculation of the covenants described in the definition of Springing Mortgage Covenant Event;
(x) evidence of a successful initial public offering and concurrent private placement by the Borrower (the “IPO”), with minimum Net Proceeds of $250,000,000 therefrom after giving effect to concurrent payment of transaction expenses incurred in connection with the Loan Documents, the IPO and related transactions; andprovided that at least $200,000,000 of such Net Proceeds shall be from the IPO;
(xi) substantially concurrent payoff in full evidence 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;and undertakings made by Bank of America and JPMorgan Chase Bank, N.A. with respect to the proposed senior secured $170,000,000 term loan facility under or in connection with the Term Loan Agreement deposited into escrow with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP pursuant to the escrow agreement between Bank of America and iStar Inc., dated as of November 16, 2016, as same was amended and supplemented by separate letter agreements dated December 30, 2016 and February 28, 2017 among Bank of America, JPMorgan Chase Bank, N.A. and iStar Inc.; and
(xii) such other assurances, certificates, documents and consents as the Administrative Agent, any L/C Issuer or the 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) 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 10.039.03, 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 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 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
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 (364-Day), the Interco Subordination Agreement (executed by each party thereto) 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;
in favor of the Collateral Agent, for the benefit of the Lenders, pursuant to the Loan Documents and the Lenders (ivincluding Swap Counterparties) under the Three-Year 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 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;
(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
Conditions of Effectiveness. This The effectiveness of this Agreement 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 met:(the first date on which all such conditions shall be satisfied or waived, the “Effective Date”):
(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 judgmentsfrom Holdings, bankruptcy, tax each Borrower 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 BorrowerRequired Lenders a duly executed original (or, indicating among other things that if elected by the assets Administrative Agent, an executed facsimile or PDF followed promptly by an executed original) counterpart 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 each Guarantor party thereto a duly executed original (or, if elected by the Administrative Agent, an executed facsimile or PDF followed promptly by an executed original) signature page to the Guarantor Acknowledgment and Consent attached hereto as Exhibit A;
(c) the Administrative Agent shall have received from the Borrowers an amendment fee equal to 0.25% of the aggregate amount of the Term Commitments and Revolving Commitments of each of the Required Lenders that has executed this Agreement, which fee will be allocated by the Administrative Agent to such Lender Required Lenders on a pro rata basis in accordance with the respective Commitments of such Required Lenders. Such amendment fee shall be fully earned on the date paid and shall not be refundable for any reason;
(d) the Borrowers shall have paid all costs and expenses of the Administrative Agent then due in accordance with Section 5(c) hereof and Section 10.5 of the Credit Agreement, to the extent such costs and expenses have been invoiced to the Borrower prior to the proposed Closing Date specifying its objection theretoEffective Date; and
(e) on the Effective Date, after giving effect to this Agreement, (i) the representations and warranties contained in Section 4 of this Agreement shall be true and correct; and (ii) no Default or Event of Default shall have occurred and be continuing.
Appears in 1 contract
Sources: Amendment and Waiver Agreement (Ultra Clean 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 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 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 ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 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.
(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).
(d7) 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 evidence reasonably satisfactory to it that all principal of and interest on any loans outstanding under, and of accrued fees and all other amounts payable under, the Existing Credit Agreement have been, or will be simultaneously, paid in full.
(8) 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 proposed 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.
(9) 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), the Administrative Agent shall promptly notify the Borrower and the Lenders of the effectiveness of this Agreement, and such notice shall be binding on all parties hereto.
(c) The Lenders that are parties to the Existing Credit Agreement, comprising the “Required Lenders” as defined in the Existing Credit Agreement, and the Borrower agree that the commitments under the Existing Credit Agreement shall terminate in their entirety simultaneously with and subject to the effectiveness of this Agreement. The Lenders, the L/C Issuer and the Borrower agree that any letters of credit issued under the Existing Credit Agreement and outstanding on the Closing Date specifying its objection theretoshall (i) for purposes of the Existing Credit Agreement, be deemed to have expired undrawn on the Closing Date, with all participations therein pursuant to the Existing Credit Agreement thereby terminated and (ii) be deemed to be Letters of Credit issued hereunder on the Closing Date, in which the Lenders participate in proportion to their Pro Rata Shares in accordance with Section 2.13 hereof.
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. 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 Amendment is subject to the provisions of Section 14.11 of the 2005 Credit Agreement. Section 1 of this Agreement shall become effective ifas of the date first above written (the “Amendment Effective Date”) when and only when, on or before September 18January 9, 20182009, all of the following conditions precedent Administrative Agent shall have been metreceived:
(a) The Notice from the administrative agent under the 2004 Credit Agreement that all commitments thereunder have been terminated and that all amounts payable or accrued under such credit agreement have been paid in full.
(b) A security agreement in substantially the form of Annex B hereto (the “Security Agreement”), duly executed by each Credit Party and each Subsidiary listed on Schedule I hereto (collectively with the Credit Parties, the “Granting Parties”), together with:
(i) acknowledgment copies or stamped receipt copies of financing statements, duly filed on or before the Amendment Effective Date under the Uniform Commercial Code of all jurisdictions that the Administrative Agent's receipt Agent may reasonably request in order to perfect and protect the liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement,
(ii) the results of a search of the following, each of which shall be originals, "pdfs" Uniform Commercial Code (or telecopies (followed promptly by originalsequivalent) unless otherwise specified, each properly executed by a Responsible Officer, each dated filings made with respect to the Closing Date (or, Collateral Grantors in the case jurisdictions contemplated by clause (i) above and copies of certificates of governmental officials, a recent date before the Closing Datefinancing statements (or similar documents) and each disclosed by such search.
(c) A Canadian security agreement 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▇▇▇▇▇ Apparel Group Canada, LP, 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 with evidence of such filings and other actions required under the completion laws of all other actions, recordings and filings of or with respect to the Pledge Agreement applicable jurisdiction that the Administrative Agent may deem reasonably necessary or reasonably desirable request in order to perfect the Liens liens and security interests created thereby;thereunder.
(ivd) 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 certificate from 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 certificateOfficer, in form and substance reasonably satisfactory to the Administrative Agent, to the effect that all representations and certified warranties of the Borrower contained in the 2005 Credit Agreement are true, correct and complete in all material respects with the same effect as accurate by if made on and as of the chief financial officer Amendment Effective Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of Borrowersuch earlier date); that the Borrower is not in violation of any of the covenants contained in the 2005 Credit Agreement, that (A) as amended hereby; that, after giving effect to the financing hereunder transactions contemplated by this Amendment, no Default or Event of Default has occurred and is continuing; and that each of the conditions to the effectiveness of this Amendment has been satisfied or waived (assuming satisfaction of the Administrative Agent where not advised otherwise).
(e) A certificate of the secretary, assistant secretary or general counsel of the Borrower, each Additional Obligor and each other Grantor (as defined in the Security Agreement) certifying as to the incumbency and genuineness of the signature of each officer of such Person executing this Amendment or each other Loan Document to which it is a party and certifying that attached thereto is a true, correct and complete copy of resolutions duly adopted by the Board of Directors of such Person authorizing, in the case of the Borrower, the borrowings contemplated under the 2005 Credit Agreement, as amended hereby, and in the case of each such Person, the execution, delivery and performance of this Amendment or the Loan Documents to which it is 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;a party.
(vif) certificates as Favorable opinions of a recent date of the good standing of Borrower and each Subsidiary whose equity securities are subject ▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel to the Pledge Agreement under the laws of its jurisdiction of incorporationBorrower, organization or formation (or equivalent)Cravath, 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 Swaine & ▇▇▇▇▇ LLP, special counsel to the Borrower, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ LLP, Pennsylvania counsel to the Borrower, and Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, New Jersey counsel to the Borrower, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Canadian counsel to the Borrower, and such other opinions as may be agreed, addressed to the Administrative Agent and each Lenderthe Lenders with respect to the Borrower, as to customary matters concerning the Borrower and the Loan Documents and such other matters as the Required Lenders may shall 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.
(cg) Unless waived by the Administrative Agent, the The Borrower shall have paid all reasonable accrued fees and documented out-of-pocket fees, charges expenses of the Joint Lead Arrangers and disbursements of one primary counsel to Joint Bookrunners and the Administrative Agent (directly to such including the accrued fees and expenses of counsel if requested by the Administrative Agent) to the extent invoiced one (1Joint Lead Arrangers and Joint Bookrunners) Business Day prior and the amendment fees payable 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)Lenders for which invoices have been received.
(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: Five Year Credit Agreement (Jones Apparel Group 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 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 64054670 76 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 64054670 77 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; 64054670 78
(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 The effectiveness of this Amendment is subject to the satisfaction or before September 18, 2018, all waiver of the following conditions precedent have been met:(the date of such satisfaction or waiver being the “Amendment No. 1 Effective Date”):
(a) The the Administrative Agent's receipt Agent shall have received copies of the following, each counterparts of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly this Amendment duly executed by a Responsible Officerthe Borrower, each dated the Closing Date (orParent Guarantor, 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:;
(b) the Administrative Agent shall have received (i) executed counterparts a favorable opinion of this AgreementL▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, sufficient in number for distribution New York counsel to the Administrative Agent, each Lender Borrower and the Borrower;
Parent Guarantor and (ii) a Revolving Credit Note favorable opinion of B▇▇▇▇▇▇ ▇▇▇▇▇ LLP, Maryland counsel to the Borrower and a Term Note for the Parent Guarantor, each requesting Lender executed by addressed to the BorrowerAdministrative Agent and the Lenders;
(iiic) 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 to which the Borrower is a party or is to be a partyDocuments;
(vd) Borrower shall have delivered to the Administrative Agent a certificateshall have received the certificate or articles of incorporation or formation, in form articles of organization, or other comparable organizational instrument of the Parent Guarantor 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 Borrower 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 filed with the covenants contained in Article VIIIState Department of Assessments and Taxation of Maryland;
(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 shall have received copies certified by a Responsible Officer of each such Person of (i) the by-laws or operating agreement (or the equivalent governing documents) of the Parent Guarantor and the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and (bii) have been satisfied, (B) that there has been no event all necessary resolutions or circumstance since other action taken by the date board of directors of the Audited Financial Statements Parent Guarantor to authorize the execution, delivery and performance of this Amendment by the Parent Guarantor and the Borrower;
(f) the Administrative Agent shall have received such documents and certifications as the Administrative Agent may reasonably require to evidence that has had each of the Borrower and the Parent Guarantor 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 could be reasonably expected tooperation of properties or the conduct of its business requires such qualification, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, except to the knowledge of the Borrower, threatened in writing in any court or before any arbitrator or Governmental Authority extent that would failure to do so could not 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;
(xg) the Administrative Agent shall have received a certificate, duly executed by a Responsible Officer, certifying that (i) the results Merger and the Conversion has occurred or shall occur substantially simultaneously with the effectiveness of this Amendment and attaching a fully executed copy of the Merger Agreement; (ii) the Parent Guarantor and the Borrower have received all approvals, consents and waivers, and have made or given all necessary filings and notices as shall be required to consummate the Reorganization, the Merger, the Conversion and the other transactions contemplated hereby, which do not and will not as of the Amendment No. 1 Effective Date after giving effect to the consummation of the Merger and the Conversion (a) contravene the terms of any of such Loan Party’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien search under, or require any payment to be made under (including a search as i) any Contractual Obligation to judgmentswhich such Loan Party is party or affecting such Loan Party or the properties of such Loan Party or any of its Subsidiaries or (ii) any order, bankruptcyinjunction, tax and intellectual writ or decree of any Governmental Authority or any arbitral award to which such Loan Party or its property matters is subject; or (c) violate any Law; except in its discretioneach case referred to in subclause (b) or (c), in form to the extent such conflict, breach, contravention or violation, or creation of any such Lien or required payment, could not reasonably be expected to have a Material Adverse Effect; and substance reasonably satisfactory thereto(iii) as of the Amendment No. 1 Effective Date, made against immediately following the Reorganization, the Merger, the Conversion and the other transactions contemplated hereby, 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 shall be made to evidence or perfect security interests in all assets a Wholly-Owned Subsidiary 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 thereunderParent Guarantor;
(bh) All fees required to be paid the Borrower and the Parent Guarantor shall have provided to the Administrative Agent on or before and the Closing Date shall have been paid applicable Lender the documentation and all fees required to be paid to the Lenders on or before the Closing Date shall have been paid.
(c) Unless waived other information reasonably requested in writing by the Administrative AgentAgent or such Lender at least ten Business Days prior to the Amendment No. 1 Effective Date that satisfies all requirements of regulatory authorities applicable to such Lender and such Lender’s internal policies and procedures in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Borrower shall have paid all reasonable and documented out-of-pocket feesPatriot Act, charges and disbursements of one primary counsel in each case at least five Business Days prior to the Administrative Agent Amendment No. 1 Effective Date;
(directly to such counsel if requested by the Administrative Agenti) 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 qualifies as a “legal entity customer” under the Administrative Agent).
(d) The Borrower Beneficial Ownership Regulation, such Person shall have delivered to the Administrative Agent, and any Lender requesting reasonably requesting, in writing at least ten (10) Business Days prior to the Amendment No. 1 Effective Date, the same, a Beneficial Ownership CertificationCertification in relation to the Borrower, in each case at least five (5) Business Days prior to the Closing Amendment No. 1 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 ; and
(j) the Administrative Agent shall have received notice from payment of all fees and expenses (including fees and expenses of counsel for the Administrative Agent) due and payable in connection with this Amendment; provided that invoices for such Lender fees and expenses have been presented to the Loan Parties a reasonable period of time (and in any event not less than one (1) Business Day) prior to the proposed Closing Date specifying its objection theretoAmendment No. 1 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'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 ▇▇▇▇▇ Fargo 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
Sources: Revolving Credit Agreement (Xenia Hotels & Resorts, Inc.)
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, 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 ifwhen, and only when, (a) the Agent shall have received counterparts of this Amendment executed by each of the Dravo Parties and the Lenders and copies of the Notes, in substantially the form of Exhibits A-I, A-2 and A-3 attached hereto, and Term Notes, in substantially the form of Exhibits B-1, B- 2 and B-3 attached hereto, executed by the Companies, (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. The Dravo Parties further agree to provide to the Agent on or before September 1815, 20181997, all of 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 (followed promptly by originals) unless otherwise specifiedindicated) being dated a date acceptable to the Agent, 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 or unanimous written consents 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 of this Amendment and the matters contemplated hereby and thereby, (B) all documents evidencing all Governmental Approvals, if any, with respect to this Amendment and the matters contemplated hereby and thereby, and (C) any amendments to the certificate or articles of incorporation (certified as of a recent date by the Borrower and the validity against the Borrower Secretary of the Loan Documents state of its jurisdiction of incorporation) and bylaws of each Dravo Party that have not been previously furnished to which it is a partyLenders;
(xii) A certificate of the Administrative Agent shall have received Secretary or an Assistant Secretary of each Dravo Party certifying the results names and true signatures of a Lien search the officers authorized to sign this Amendment on behalf of such Dravo Party and any other documents to be delivered by such Dravo Party hereunder;
(including a search as to judgmentsiii) A favorable opinion of B▇▇▇▇▇▇▇ I▇▇▇▇▇▇▇▇, bankruptcyProfessional Corporation, tax and intellectual property matters in its discretion)special counsel for the Dravo Parties, 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); 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 thereunderLenders;
(biv) All fees Such other documents, instruments, approvals (and, if 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, certified duplicates of executed copies thereof) or opinions as the Borrower Agent or any Lender may reasonably request. The representations and warranties contained herein shall have paid all reasonable be true 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 Effective Date; there shall exist on the Administrative Agent) to the extent invoiced one (1) Business Day prior to the Closing Effective Date, plus such additional amounts no Event of such feesDefault or Default; there shall exist no material adverse change in the financial condition, charges and disbursements as shall constitute business operation or prospects of any Dravo Party or its reasonable estimate of such feesSubsidiaries since December 31, 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)1996.
(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: Amendment Agreement (Dravo 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 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 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 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 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:
(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 Restatement Effective Date (or, in the case of certificates of governmental officials, a recent date before the Closing DateRestatement Effective Date or such later date as may be agreed to by the Administrative Agent) 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 Affirmation of 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 Distribution 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; and
(G) a Perfection Certificate, in substantially the form of Exhibit H-1, duly executed by the REIT;
(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 (1) the business, assets or circumstance since financial condition of (a) the date REIT or (b) the REIT, its Subsidiaries and any of the Audited Financial Statements that has had entities in which they have invested directly or could be reasonably expected toindirectly, either individually taken as a whole or (2) the facts and information, taken as a whole, regarding any such entities as heretofore disclosed to the Administrative Agent and the Lenders and (y) attaching copies of the operating agreements, partnership agreements or other applicable organizational documents of (A) each Affiliated Investor in the aggregatewhich all or a portion of its Equity Interests are owned directly by a Loan Party, have a Material Adverse Effect, (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) 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;
(xi) 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 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 materially affect any of the Loan Documents to which it is Parties, any of their respective Subsidiaries, any Affiliated Investor that owns an Investment Asset or whose Equity Interests are owned (in whole or in part) directly by a party;
Loan Party, or any transaction contemplated hereby, or that could have a material adverse effect on (w) the REIT, (x) the Administrative Agent REIT, its Subsidiaries or any of the entities in which they have invested directly or indirectly, taken as a whole, (y) any transaction contemplated hereby or (z) the ability of any Loan Party to perform its obligations under the Loan Documents;
(xii) a Solvency Certificate from the Loan Parties demonstrating that each Loan Party is Solvent;
(xiii) a Compliance Certificate executed by a Responsible Officer of the REIT, giving pro forma effect to the effectiveness of this Agreement;
(xiv) confirmation that the REIT has delivered a written notice to each Departing Lender terminating, as of the date that the other conditions specified in this Section 4.01 are satisfied, all commitments of the Departing Lenders under the Original Credit Agreement, and that all amounts owing (whether or not due) under the Original Credit Agreement and related documents through and including such termination date to each Departing Lender shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax and intellectual property matters been paid 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)full; 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 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 Restatement Effective 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 MLPF&S (directly to such counsel if requested by the Administrative Agent) to the extent invoiced one (1) Business Day prior to or on 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 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 Restatement Effective 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. 7 Effective Date”, on or before September 18which date is November 30, 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. 7 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. 7 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(d) and (bf) have been satisfied, of this Amendment.
(Bd) that there has been no event or circumstance since the date The representations and warranties of the Audited Financial Statements that has had Borrower and each other Credit Party contained in Section 8 of the Credit Agreement (as amended hereby) or could any other Credit Document shall be reasonably expected totrue 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. 7 Effective Date, either individually or in the aggregate, have a Material Adverse Effect, (C) that there is no action, suit, investigation or proceeding pending or, except to the knowledge 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 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 such earlier date.
(De) 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 expenses due 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, including, to the Borrower shall have paid extent invoiced, reimbursement or 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).
(df) The Borrower shall have delivered After giving effect to this Amendment, no Default or Event of Default exists, or would result from 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 effectiveness 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 theretoAmendment.
Appears in 1 contract
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 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 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 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 shall become effective ifas of the date first above written when, on or before September 18and only when, 2018the Administrative Agent shall have received counterparts of this Amendment executed by the Borrower and the Majority Lenders or, as to any of the Lenders, advice satisfactory to the Agent that such Lender has executed this Amendment. This Amendment is subject to the provisions of Section 7.9 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 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 reasonably satisfactory to the Administrative Agent and the Lenders who have executed this Amendment (unless otherwise specified) and in sufficient copies for each of the LendersLender:
(ia) executed counterparts Certified 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 one or more resolutions or other authorizations 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 certified by 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 appropriate officer of the Borrower as being in full force and effect on the Administrative Agent may reasonably require evidencing date of effectiveness of this Amendment, authorizing the identityexecution, authority delivery and capacity performance of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement Amendment and the other Loan Documents any instruments or agreements required hereunder or thereunder to which the Borrower is a party or is to be a party;.
(vb) A certificate from Borrower shall have delivered to the Administrative Agent a certificate, in form and substance reasonably satisfactory to the Administrative Agent, and certified as accurate signed by the chief financial appropriate authorized officer of Borrower, that (A) after giving effect to the financing hereunder and each Loan to be advanced on dated 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 to the covenants contained in Article VIII;
(vi) certificates as of a recent date incumbency of the good standing of Borrower natural persons authorized to execute and each Subsidiary whose equity securities are subject to the Pledge Agreement under the laws of its jurisdiction of incorporation, organization deliver this Amendment and any instruments or formation (agreements required hereunder 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 thereunder to which it Borrower is a party;.
(xc) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax Evidence that all 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 expenses required to be paid to the Administrative Agent on (or before its counsel) in connection with the Closing Date shall execution of this Amendment have been paid and all fees required to or will 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 below are correct 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 1 contract
Sources: 3 Year Revolving Facility Credit Agreement (Teco Energy Inc)
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 Amendment shall become be effective ifas of the Seventh Amendment Effective Date when, and only when,
(a) a Borrower shall have paid, on or before September 18July 15, 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 July 15, 2008, a fee equal to 0.25% of the following conditions precedent have been met:Total Exposure Amount of each such Lender;
(ab) The the Administrative Agent's receipt of Agent shall have received, on or before July 15, 2008, the followingfollowing documents, 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 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 all counsel to the Administrative AgentAgent for services rendered since the date of their last invoice, each Lender and or since they commenced work, as well as all expenses in connection with this Amendment shall have been paid in full in accordance with Section 10.3 of the BorrowerCredit Agreement;
(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 shall have 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 VIIIcontinuing;
(vic) certificates the Pension Trustees shall have passed a resolution to revise the Recovery Plan, or such revised Recovery Plan shall have been executed by the parties thereto, in either case as of a recent date of reasonably determined by the good standing of Borrower and each Subsidiary whose equity securities are subject to Administrative Agent, such that the Pledge Agreement under revised Recovery Plan is in substantially the laws of its jurisdiction of incorporation, organization or formation (or equivalent), same form 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 recovery plan heretofore provided 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;Agent; and
(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;
(xd) the Administrative Agent shall have received the results of a Lien search (including a search as to judgments, bankruptcy, tax all reports 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 other data of the Borrower, indicating among other things that U.S. Borrower and its Subsidiaries setting forth 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 current liquidity situation 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 U.S. Borrower and the Administrative Agent)its Subsidiaries.
(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 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 (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 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.
Appears in 1 contract
Conditions of Effectiveness. This Agreement The effectiveness of this Amendment is subject to the conditions precedent that the Administrative Agent shall become effective ifhave received (i) counterparts of this Amendment duly executed by the Borrower, on or before September 18each Lender and the Administrative Agent, 2018(ii) for the account of (A) each existing Lender which is increasing its Commitment and each new Lender (if any) entering into the Credit Agreement, all in each case pursuant to an Assignment and Assumption in connection with this Amendment, an amendment fee in an amount equal to 0.25% of the following conditions precedent have been met:
(a) The Administrative Agent's receipt amount of the following, increase in 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 (orsuch existing Lender's Commitment and, in the case of certificates of governmental officialseach such new Lender, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and each 0.25% of the Lenders:
amount of such new Lender's Commitment and (iB) executed counterparts each existing Lender, an amendment fee in an amount equal to 0.125% of such Lender's Commitment prior to giving effect to any increase thereto in connection with this AgreementAmendment, sufficient in number for distribution to (iii) such other instruments and documents as are reasonably 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 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 an opinion letter 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 Lenderthe Lenders, as and in form and substance reasonably acceptable to customary the Administrative Agent, addressing matters concerning the Borrower and the Loan Documents as the Required Lenders may reasonably request;
relating to this Amendment, (ixv) 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 secretary 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 assistant secretary 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 acceptable 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, certifying the currency and authenticity of the resolutions of the board of directors of the Borrower shall have paid all authorizing its execution, performance and delivery of this Amendment and of the Credit Agreement as amended hereby; and (vi) payment and reimbursement of the Administrative Agent's fees and reasonable and documented out-of-pocket fees, charges expenses (including reasonable legal fees and disbursements of one primary counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agentexpenses) 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)in connection with this 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 such Lender prior to the proposed Closing Date specifying its objection thereto.
Appears in 1 contract
Sources: 5 Year Credit Agreement (Inergy L P)
Conditions of Effectiveness. This Agreement Amendment shall become effective ifas of the date (the “Fourth Amendment 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 Agent shall have received, dated as of the followingFourth Amendment Effective Date, each of which shall be originals, "pdfs" or telecopies (followed promptly by originals) unless otherwise specified, each properly 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 Borrowers and the Required Lenders:.
(ib) The Administrative Agent shall have received, dated as of the Fourth Amendment Effective Date, an executed counterparts counterpart of this the Consent, Reaffirmation, and Agreement of Guarantor from each Guarantor.
(c) The Administrative Agent shall have received, dated as of the Fourth Amendment Effective Date, an executed counterpart of the Amendment to Security Agreement, 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;Credit Parties.
(iiid) The Administrative Agent shall have received 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 certificate of the completion secretary or an assistant secretary 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 each Credit Party executing any Credit Documents as of the Borrower as Fourth Amendment Effective Date, dated the Administrative Agent may reasonably require evidencing the identity, authority Fourth Amendment Effective Date 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 (Ai) that the conditions specified in Sections 4.02(aorganizational documents of such Credit Party have not been amended, amended and restated, or otherwise modified since the Third Amendment Effective Date (and if such organizational documents have been amended, amended and restated, or otherwise modified, attaching copies thereof) and (b) have been satisfied, (Bii) that there has been no event or circumstance since the date attached thereto is a true and complete copy 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 board of the transaction contemplated hereby and directors (or similar governing body) of such Credit Party, authorizing the execution, delivery and performance by the Borrower of this Agreement and the validity against the Borrower of the Loan other Credit Documents to which it is a party;, and as to the incumbency and genuineness of the signature of each officer of such Credit Party executing this Agreement or any of such other Credit Documents, and attaching all such copies of the documents described above, as applicable.
(xe) The Borrowers shall have paid to 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)Agent, in form and substance reasonably satisfactory theretoimmediately available funds, 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 $25,000,000 amount required to be paid to the Administrative Agent on or before April 30, 2010 pursuant to Section 2.6(a) 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 paidCredit Agreement.
(cf) Unless waived by The Borrower shall have paid to the Administrative Agent, in immediately available funds, no less than $65,000,000, which amount shall be applied by the Borrower Administrative Agent to non-permanently reduce the Revolving Loans.
(g) The Borrowers shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements of one primary counsel to the Administrative Agent Agent, for the pro-rata benefit of each Lender who approves this Amendment, a nonrefundable fee in the amount of $1,000,000, which fee shall be deemed fully earned as of the Fourth Amendment Effective Date.
(directly to such counsel if requested by the Administrative Agenth) to To the extent invoiced at least one (1) Business Day prior to the Closing Fourth 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 and the Administrative Agent).
(d) The Borrower Borrowers shall have delivered to the Administrative Agent, paid all reasonable out-of-pocket costs 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 expenses 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 in connection with the proposed Closing Date specifying its objection preparation, negotiation, execution and delivery of this Amendment (including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent with respect 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, 2018, all of the following conditions precedent have been metsatisfied:
(a) The Administrative Agent's receipt the conditions precedent to the effectiveness of the following, each of which shall be originals, "pdfs" or telecopies Acquisition B Commitments (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer, each dated the Closing Date (or, as defined in the case Second Amended and Restated Credit Agreement) contained in Section 3.05 of certificates of governmental officialsthe Second Amended and Restated Credit Agreement have been satisfied;
(b) on or before 5:00 p.m. (New York City time) on June 30, a recent 1997 or such later date before the Closing Date) and each in form and substance reasonably satisfactory to as the Administrative Agent and each of the Lenders:
Borrower shall agree (ibut in any event, on or before July 31, 1997) 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 AgreementClosing Date"), 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 counterparts 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 docketi) 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 this Amendment executed by the Borrower, indicating among other things that the assets of each Required Lenders and the Borrower are not subject Acquisition B Lenders or, as to any Liens of the Lenders, advice satisfactory to the Administrative Agent that such Lender has executed this Amendment and (except for Liens permitted under this Agreementii) the Consent attached hereto executed by each Loan Party (other than the Borrower); and
(xii) substantially concurrent payoff in full the amendment fee 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 5 basis points shall have been received by the Administrative Agent for the account of the Lenders executing this Amendment 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 (ii) the underwriting fee set forth in the fee letter dated as of such feesMay 21, 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 1997 between the Borrower and the Administrative Agent).
(d) The Borrower Agents shall have delivered been received by the Administrative Agent for the account of the Acquisition B Lenders on or prior to the Administrative AgentClosing Date, and any Lender requesting (iii) the same, a Beneficial Ownership Certification, in each case at least five (5) Business Days fees and expenses of counsel to the Agents previously accrued and invoiced has been received by counsel to the Agents on or prior to the Closing Date. Without limiting The effectiveness of Section I of this Amendment is conditioned upon the generality accuracy of the factual matters described herein. This Amendment is subject to the provisions of Section 8.01 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 theretoAmended and Restated Credit Agreement.
Appears in 1 contract
Sources: Credit Agreement (Amf Group Inc)
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 5.01(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) All due diligence with respect to the REIT, the Borrower and their respective Subsidiaries and the Initial Eligible Portfolio Properties, 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 June 30, 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 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).
(df) The Borrower consummation of an Initial Public Offering by the REIT with Net Cash Proceeds received by the REIT in respect thereof in an amount not less than $425,000,000, and the REIT and its Subsidiaries 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 Datebeen formed. 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 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 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 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 its initial Credit Extension 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" email (in a .pdf format) or telecopies (followed promptly by originals) unless otherwise specified, each properly executed (if applicable) by a Responsible OfficerOfficer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, the Borrower’s Instruction Certificate and the Borrower Remittance Instructions, 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) in each case, solely with respect to Collateral required to be granted on the Closing Date, a pledge agreement, in substantially the form of Exhibit E agreement (together with each other pledge agreement supplement joinder and/or amendment delivered in connection therewith, in each case as amendedpursuant to Section 6.12(a) or otherwise, the "“Pledge Agreement"”), duly executed by the Borrower and any applicable SubsidiaryGrantors, 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 Pledge Agreement,
(B) evidence that (x) all proper financing statements have been or contemporaneously therewith will be duly filed under the Uniform Commercial Code of all applicable jurisdictions and (y) all applicable perfection requirements that the Administrative Agent reasonably 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 Grantor 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) 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;
(iv) a duly completed Borrower’s Instruction Certificate executed by a Responsible Officer of the Borrower, together with 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 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, individually or in the aggregate, reasonably satisfactory be expected to have a Material Adverse Effect;
(vi) a favorable opinion of (A) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLC, special Maryland and Delaware counsel to the Loan Parties and (B) Backenroth ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, special New York counsel to the Loan Parties, addressed 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 L/C Issuer and each Lender, as to customary such matters concerning the Borrower Loan Parties and the Loan Documents as the Required Lenders 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 that (A1) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B2) that there has been no event or circumstance since the date of the Audited Financial Statements January 28, 2021 that has had or could would reasonably be reasonably expected toto have, either individually or in the aggregate, have a Material Adverse 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 (A) relates to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby, or (B) would 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 if any, which Organization Documents shall (1) in the Borrower and the validity against the Borrower reasonable opinion of the Loan Documents Administrative Agent, permit the Administrative Agent to which it is realize on such Collateral upon the occurrence and during the continuance of an Event of Default and (2) otherwise be in form and substance reasonably satisfactory to the Administrative Agent;
(ix) duly completed Borrower Remittance Instructions signed by a partyResponsible Officer of the Borrower;
(x) the Administrative Agent shall have received Audited Financial Statements and the results unaudited financial statements 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 referred to 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 5.05(b); and;
(xi) substantially concurrent payoff a fully completed Compliance Certificate as of the last day of the fiscal quarter of the Borrower most recently ended as of the Closing Date ended for which financial statements of the Borrower are available, 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 full of all outstanding obligations under reasonable detail the Existing Credit Agreement calculations required to establish compliance with the proceeds of covenants set forth in Section 7.11;
(xii) such other assurances, certificates, documents and consents as the initial Loans funded hereunder and Administrative Agent, the termination of all commitments thereunder;L/C Issuer or the Required Lenders reasonably may require.
(b) All Any fees required to be paid to under any of the Administrative Agent on or before the Closing Date shall have been paid and all fees required to be paid to the Lenders Loan Documents 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 payable under the Loan Documents and invoiced one (1) Business Day prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements payable under the Loan Documents 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 Upon the reasonable request of any Lender made at least ten (10) days prior to the Closing Date, the Borrower shall have delivered provided to the Administrative Agentsuch Lender, and any such Lender requesting shall be reasonably satisfied with, the samedocumentation and other information so requested in connection with applicable “know your customer” rules and regulations, a Beneficial Ownership CertificationAnti-Money-Laundering Laws, including, without limitation, the PATRIOT Act, in each case at least five (5) Business Days 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 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 not be effective ifunless and until all corporate actions of Borrower and the Significant Subsidiaries taken in connection herewith and the transactions contemplated hereby shall be satisfactory in form and substance to Administrative Agent and Lenders, on or before September 18, 2018, all and each of the following conditions precedent shall have been metsatisfied:
(a) The All reasonable out-of-pocket fees and expenses in connection with the Loan Documents, including this Amendment, including legal and other professional fees and expenses incurred on or prior to the date of this Amendment by Administrative Agent's receipt Agent or any Lender, including, without limitation, the fees and expenses of Winstead Sechrest & Minick P.C. and KPMG LLP, shall have been ▇▇▇▇.
(b) ▇▇▇▇▇▇strative Agent shall have received each 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 a certificate 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, Required Lenders and certified as accurate by the chief financial officer of BorrowerAdministrative Agent's counsel, that certifying (A) as to the accuracy in all material respects, after giving effect to this Amendment, of the financing hereunder representations and each warranties set forth in the Credit Agreement, this Amendment and the other Loan to be advanced on the Closing Date, Borrower and each Subsidiary thereof is each SolventDocuments, 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 exists no event Default or circumstance since the date Event of the Audited Financial Statements that has had or could be reasonably expected toDefault, either individually or in the aggregateafter giving effect to this Amendment, 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 this Amendment will not cause a partyDefault or Event of Default;
(xii) payment of the Amendment Fee;
(iii) such other documents, certificates and instruments as the Administrative Agent shall require prior to the date hereof.
(c) The Administrative Agent shall have received the results a Priority Advance Asset Coverage Report dated as 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 date proximate to the Administrative Agent on or before the Closing Date shall have been paid and all fees Thirteenth Amendment Effective Date, together with such supporting information with respect thereto as may be reasonably 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 Subject to Section 6.19, the effectiveness of this Agreement shall become effective if, on is subject to satisfaction or before September 18, 2018, all waiver by Agent of the following conditions precedent have been metprecedent:
(a) The Administrative Unless waived by Agent and Lenders, Agent's ’s receipt of the following, each of which shall be originalsoriginals or facsimiles, "pdfs" including pdfs or telecopies similar electronic transmission (followed promptly by originals,) unless otherwise specified, each properly executed by a Responsible OfficerSenior Officer of Borrower or the applicable Guarantor (including the Target Company), each dated the Closing Date (oron, or in the case of certificates third-party certificates, dated on or as of governmental officials, a recent date before before, the Closing Date) Date and each in form and substance reasonably satisfactory to the Administrative Agent Agent, each Lender and each of the Lenderstheir legal counsel:
(i) executed counterparts of this Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the BorrowerLoan Documents;
(ii) a Revolving Credit Note executed original counterparts of each Subordination Agreement, each in form and a Term Note for each requesting Lender executed by the Borrowersubstance satisfactory to 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 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 copies of the completion First Lien Credit Documents and the Term Loan (as defined therein) shall have funded in accordance with the terms 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 therebyFirst Lien Credit Documents; (Reserved);
(iv) (Reserved);
(v) amendments to the Organization Documents of the Loan Parties in form and content reasonably acceptable to Agent;
(vi) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Senior Officers of the Borrower Borrower, each Guarantor, as the Administrative Agent may reasonably require evidencing to establish the identity, identities of and verify the authority and capacity of each Responsible Senior Officer thereof authorized to act as a Responsible Senior 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 applicablethereof;
(vii) written notice by such evidence as Agent and any Lender may reasonably require to verify that Borrower designating a deposit account acceptable and each Guarantor is duly organized or formed, validly existing, in good standing and qualified to Administrative Agent into engage in business in Borrower’s or such Guarantor’s jurisdiction of organization and in each foreign jurisdiction in which the proceeds of Loans are Borrower or such Guarantor is required to be disbursedqualified, including copies of Borrower’s and each Guarantor’s Organization Documents certified by the corporate Secretary, certificates of good standing and/or qualification to engage in business and, if requested by Agent, tax clearance certificates;
(viii) a favorable opinion Perfection Certificate signed by a Senior Officer 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 requestParties;
(ix) a certificate signed by a Responsible Senior Officer of the Borrower certifying that (A1) that the conditions specified representations and warranties made by each Loan Party in Sections 4.02(a) the Loan Documents are true and correct on and as of the Closing Date (b) have been satisfiedexcept to the extent such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date), (B2) that there has been no event or circumstance since each Loan Party is in compliance with all 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 terms 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 provisions of the Loan Documents to which it is a party, and no Default or Event of Default shall have occurred and be continuing, (3) since December 31, 2015, there has been no event or circumstance which has or has had a Material Adverse Effect, and (4) a pro forma calculation of the Total Leverage Ratio of less than 4.50x, Senior Leverage Ratio of less than 3.00x, Adjusted EBITDA of the Parent on a Consolidated Basis of not less than $15,630,000, and Adjusted EBITDA of Borrower on a Consolidated Basis of not less than $19,130,000 (in each case giving effect to the Target Transaction and the funding of the Term Loans (as defined in the First Lien Credit Agreement) on the Closing Date);
(x) (Reserved);
(xi) an opinion of K▇▇▇▇▇ ▇▇▇▇ & W▇▇▇▇▇ LLP, M▇▇▇▇▇ ▇▇▇▇▇ & B▇▇▇▇▇▇ LLP, K▇▇▇▇▇▇ M▇▇▇▇▇▇▇ & K▇▇▇▇▇▇ PLL and Bilzin S▇▇▇▇▇▇ ▇▇▇▇▇ Price & A▇▇▇▇▇▇ LLP, each legal counsel to the Administrative Loan Parties, as to matters Agent may reasonably request, dated as of the Closing Date and otherwise in form and substance satisfactory to Agent;
(xii) receipt of certificates of insurance required to be maintained under Section 6.09, from insurance carriers acceptable to Agent, which certificates of insurance are in such forms and evidence such amounts of insurance coverage and deductibles acceptable to Agent pursuant to insurance policies with additional insured and lender loss payable clauses in favor of Agent and the Lenders;
(xiii) Loan Parties shall have received all Governmental Authorizations and all Consents, in each case that are necessary in connection with the results entry into, consummation and performance of a Lien search (including a search as to judgments, bankruptcy, tax the transactions contemplated by the Loan Documents and intellectual property matters the Acquisition of the Target Company and each of the foregoing shall be in its discretion), full force and effect and in form and substance reasonably satisfactory to Agent. All applicable waiting periods shall have expired without any action being taken or threatened by any competent authority which would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by the Loan Documents and the Acquisition of the Target Company and no action, request for stay, petition for review or rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending, and the time for any applicable Governmental Authority to take action to set aside its consent on its own motion shall have expired;
(xiv) Agent and the Lenders shall have received all documentation and other information required by such institution or its bank regulatory authorities under Sanctions, Anti-Terrorism Laws, Anti-Corruption Laws and other Laws, including the USA PATRIOT Act;
(xv) Agent shall have received evidence, reasonably satisfactory to Agent, that Borrower has completed the Target Transaction in accordance with the terms of the Target Acquisition Documents (without any material amendment thereto or waiver thereunder unless consented to by Agent). Agent shall have received a copy of the Target Acquisition Agreement and all supplements, amendments, installments, documents and agreements related thereto, made against certified in an Officer’s Certificate, dated the Borrower under Closing Date, as correct and complete;
(xvi) (Reserved);
(xvii) receipt of a copy of the Uniform Commercial Code (or applicable judicial docket) as representations and warranty insurance 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 favor of the Borrower, indicating among other things that the assets from an insurance carrier acceptable to Agent, which policy of each the Borrower are not subject insurance is in such form and evidences such amounts of insurance coverage and deductibles acceptable to any Liens (except for Liens permitted under this Agreement)Agent; and
(xixviii) 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;such other assurances, certificates, documents, consents or opinions as Agent 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 all fees required to be paid to the Lenders on or before the Closing Date amounts payable under Section 2.02, 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 Attorney Costs 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 Attorney Costs as shall constitute its reasonable estimate of such fees, charges and disbursements Attorney Costs 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: Securities Purchase Agreement and Security Agreement (Fusion Telecommunications International 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 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 is subject to --------------------------- the provisions of Section 8.01 of the Credit Agreement. This Amendment shall become effective ifas of the date first above written when, on or before September 18and only when the Agent shall have received counterparts of this Amendment executed by the Borrower and all of the Lenders or, 2018as to any of the Lenders, advice satisfactory to the Agent that such Lender has executed this Amendment 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 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 Notes to the Administrative Agent and order of each of the LendersLenders in a principal amount equal to each such Lender's Commitment after giving effect to this Amendment.
(b) Certified copies of (i) the resolutions of the Board of Directors of the Borrower approving the incurrence of the Indebtedness contemplated by this Amendment and the Notes 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 Notes and the matters contemplated hereby and thereby.
(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, the Notes and the other documents to be delivered hereunder and thereunder.
(d) A copy of a certificate of the Secretary of State of the State of Delaware, dated reasonably near the date hereof, listing the certificate of limited partnership of the Borrower and each amendment thereto on file in his or her office and certifying that (A) such amendments are the only amendments to the Borrower's certificate of limited partnership on file in his or her office, (B) the Borrower has paid all franchise taxes to the date of such certificate and (C) the Borrower is duly organized and in good standing under the laws of the State of Delaware.
(e) A certified copy of the Partnership Agreement, duly executed.
(f) A favorable opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., Senior Vice President--Legal for the Borrower, substantially in the form of Exhibit D to the Credit Agreement and as to such other matters as any Lender through the Agent may reasonably request.
(g) A certificate signed by a duly authorized officer of the Borrower stating that:
(i) executed counterparts The representations and warranties contained in Section 4 hereof 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