Conditions Precedent to Effective Date. The occurrence of the Effective Date is subject to satisfaction of the following conditions precedent: (a) The Agent shall have received the following, each dated the Effective Date, in form and substance satisfactory to the Lenders and in sufficient copies for each Lender: (i) this Agreement, duly executed by the Borrower, each Lender and the Agent; (ii) each Term Note requested by a Lender pursuant to Section 2.16 payable to the order of each such Lender, duly completed and executed by the Borrower; (iii) copies of (A) the resolutions of the Board of Directors of the Borrower approving this Agreement and the other Loan Documents to which it is, or is to be, a party, and (B) all documents evidencing other necessary corporate action on the part of the Borrower with respect to this Agreement and the other Loan Documents, certified by the Secretary or an Assistant Secretary of the Borrower; (iv) a certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names, true signatures and incumbency of the officers of the Borrower authorized to sign this Agreement and the other Loan Documents to which it is, or is to be, a party; (v) copies of the Certificate of Incorporation (or comparable charter document) and by laws of the Borrower, together with all amendments thereto, certified by the Secretary or an Assistant Secretary of the Borrower; (vi) copies of all Governmental Approvals, if any, required in connection with the execution, delivery and performance of this Agreement and the other Loan Documents, certified by the Secretary or an Assistant Secretary of the Borrower; (vii) copies of the financial statements referred to in Section 4.1(f), certified by the Secretary or an Assistant Secretary of the Borrower; (viii) favorable opinions of: (A) ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Borrower, in substantially the form of Exhibit 3.1 (a) (viii)(A) and as to such other matters as the Majority Lenders, through the Agent, may reasonably request; and (B) In-house Counsel of the Borrower, in substantially the form of Exhibit 3.1(a)(viii)(B) and as to such other matters as the Majority Lenders, through the Agent, may reasonably request; (ix) payment (for its own account or the account of the applicable payees, as applicable) of any fees required to be paid on or before the Effective Date in connection with this Agreement or the Repurchase Documentation, including without limitation the fees described in the Citi Fee Letter and the JPM Fee Letter; (x) receipt of final executed (where applicable) copies of the Repurchase Documentation, which shall be satisfactory to the Agent, and evidence satisfactory to the Agent that the transactions contemplated by the Repurchase Documentation have commenced; and (xi) such other approvals, opinions and documents as any Lender, through the Agent, may reasonably request. (b) The following statements shall be true and correct, and the Agent shall have received a certificate of a duly authorized officer of the Borrower, dated the date of the Effective Date and in sufficient copies for each Lender, stating that: (i) the representations and warranties set forth in Section 4.1 of this Agreement are true and correct on and as of the date of the Effective Date, as though made on and as of such date, and (ii) no event has occurred and is continuing that constitutes an Unmatured Default or an Event of Default. (c) The Borrower shall have paid all costs and expenses of the Agent (including counsel fees and disbursements) incurred through (and for which statements have been provided prior to) the Effective Date.
Appears in 1 contract
Conditions Precedent to Effective Date. The occurrence obligations of the Effective Date is subject Banks to satisfaction make Loans (including Swing Line Loans) and of the L/C Issuer to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions precedent:is satisfied (or waived in accordance with Section 11.1):
(a) 3.1.1. The Administrative Agent shall have received from the following, Borrower and each dated Bank party hereto (such Banks to constitute at least the Effective Date, in form and substance Majority Banks) either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Lenders and in sufficient Administrative Agent (which may include telecopy or electronic transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement.
3.1.2. The Administrative Agent shall have received originals or copies for each Lender:
satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of signed signature pages, with originals to follow by next day delivery service) of (i) this a Note issued by the Borrower pursuant to Section 2.11 payable to the order of each Bank that has requested a promissory note, (ii) the Security Agreement, duly executed by the BorrowerBorrower and SMF, (iii) the Guaranty, duly executed by SMF, and (iv) and all other Loan Documents required to be executed and delivered as of the Effective Date pursuant to this Agreement.
3.1.3. The Administrative Agent shall have received a Borrowing Notice with respect to the Loans, if any, to be made on the Effective Date.
3.1.4. The Administrative Agent shall have received (i) copies of the articles or certificate of incorporation or organization of the Borrower and each Lender of its Subsidiaries, together with all amendments, certified by the appropriate governmental officer in its jurisdiction of incorporation or organization (or, as applicable, a certification by the Secretary or Assistant Secretary of the Borrower and each of its Subsidiaries that no changes have been made to its articles or certificate of incorporation or organization since the Agent;
date copies of the same were furnished to the Administrative Agent pursuant to the Existing Credit Agreement), (ii) a certificate of good standing for the Borrower and each Term Note requested by a Lender pursuant to Section 2.16 payable to the order of each such Lenderits Subsidiaries, duly completed and executed certified by the Borrower;
appropriate governmental officer in its jurisdiction of incorporation or organization, (iii) copies of (A) the resolutions of the Board of Directors of the Borrower approving this Agreement and the other Loan Documents to which it is, or is to be, a party, and (B) all documents evidencing other necessary corporate action on the part of the Borrower with respect to this Agreement and the other Loan Documentscopies, certified by the Secretary or an Assistant Secretary of the Borrower;
(iv) a certificate of the Secretary or an Assistant Secretary of the Borrower certifying the namesand SMF, true signatures and incumbency of the officers of the Borrower authorized to sign this Agreement and the its bylaws, operating agreement or other Loan Documents to which it is, or is to be, a party;
(v) copies of the Certificate of Incorporation (or comparable charter document) and by laws of the Borrowerinternal governance documents, together with all amendments theretothereto (or, as applicable, a certification by the Secretary or Assistant Secretary of the Borrower and SMF that no changes have been made to its bylaws, operating agreement or other internal governance documents since the date copies of the same were furnished to the Administrative Agent pursuant to the Existing Credit Agreement), and (iv) copies, certified by the Secretary or an Assistant Secretary of the Borrower;Borrower and SMF, of the resolutions or actions of its Board of Directors or other governing body authorizing the execution of the Loan Documents to which it is a party.
(vi) copies of all Governmental Approvals3.1.5. The Administrative Agent shall have received an incumbency certificate, if any, required in connection with the execution, delivery and performance of this Agreement and the other Loan Documents, certified executed by the a Secretary or an Assistant Secretary of the Borrower;
(vii) copies Borrower and SMF, which shall identify by name and title and bear the signatures of the financial statements referred Authorized Officers of the Borrower and SMF authorized to sign the Loan Documents to which it is a party and, in Section 4.1(f), certified by the Secretary or an Assistant Secretary case of the Borrower;, the Authorized Officers of the Borrower authorized to submit borrowing requests and Interest Rate Election Notices, upon which certificate the Administrative Agent shall be entitled to rely until informed of any change in writing by an Authorized Officer.
3.1.6. The Administrative Agent shall have received a certificate, dated the Effective Date and signed by an Authorized Officer of the Borrower, confirming compliance with the conditions set forth in Sections 3.2.1 and 3.2.2.
3.1.7. The Administrative Agent shall have received a certificate from an Authorized Officer of the Borrower dated as of the Effective Date addressed to the Administrative Agent and each Bank certifying that, as of such date, the Borrower and each of its Subsidiaries is Solvent (viiiassuming with respect to each Guarantor, that the fraudulent transfer savings language contained in the Guaranty applicable to such Guarantor will be given full effect).
3.1.8. The Administrative Agent shall have received a favorable written opinion (addressed to the Administrative Agent and the Banks and dated the Effective Date) favorable opinions of:
(A) of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for to the BorrowerBorrower and the Existing Subsidiaries, covering the matters set forth in substantially the form of Exhibit 3.1
(a) (viii)(A) Schedule 3.1.8 and as to such other matters as the Administrative Agent or the Majority Lenders, through the Agent, may Banks shall reasonably request; and
(B) In-house Counsel of the Borrower, in substantially the form of Exhibit 3.1(a)(viii)(B) and as . The Borrower hereby requests such counsel to deliver such other matters as the Majority Lenders, through the Agent, may reasonably request;
(ix) payment (for its own account or the account of the applicable payees, as applicable) of any fees required to be paid on or before the Effective Date in connection with this Agreement or the Repurchase Documentation, including without limitation the fees described in the Citi Fee Letter and the JPM Fee Letter;
(x) receipt of final executed (where applicable) copies of the Repurchase Documentation, which shall be satisfactory to the Agent, and evidence satisfactory to the Agent that the transactions contemplated by the Repurchase Documentation have commenced; and
(xi) such other approvals, opinions and documents as any Lender, through the Agent, may reasonably requestopinion.
(b) 3.1.9. The following statements shall be true and correct, and the Administrative Agent shall have received a copy of, or a certificate of a duly authorized officer as to coverage under, the insurance policies required by Section 5.5 and the applicable provisions of the BorrowerCollateral Documents, dated each of which shall be endorsed or otherwise amended to include a customary lender’s loss payable endorsement and name the date of the Effective Date and in sufficient copies for each Lender, stating that:
(i) the representations and warranties set forth in Section 4.1 of this Agreement are true and correct on and Collateral Agent as of the date of the Effective Date, as though made on and as of such date, and
(ii) no event has occurred and is continuing that constitutes an Unmatured Default or an Event of Defaultadditional insured thereunder.
(c) 3.1.10. The Borrower shall have paid to the Administrative Agent, for the account of each Bank, an upfront fee in an amount equal to (i) 0.45% (45 basis points) of such Bank’s Commitment, if such Bank’s Commitment is $32,000,000 or higher, or (ii) 0.35% (35 basis points) of such Bank’s Commitment, if such Bank’s Commitment is less than $32,000,000.
3.1.11. The Administrative Agent shall have received payment of all costs and expenses of the Agent (including counsel other fees and disbursements) incurred through (other amounts due and for which statements have been provided payable on or prior to) to the Effective Date, including the fees set forth in the separate fee letter between the Administrative Agent and the Borrower and, to the extent invoiced, reimbursement or payment of all out of pocket expenses required to be reimbursed or paid by the Borrower hereunder.
3.1.12. The Administrative Agent shall have received evidence satisfactory to the Administrative Agent that a Second Amendment to the Prudential Agreement has been executed and delivered by the parties thereto, and the terms and provisions of such Second Amendment shall be acceptable to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Saia Inc)
Conditions Precedent to Effective Date. The occurrence of On the Effective Date is subject (i) all obligations of the Company hereunder incurred prior to satisfaction such date (including, without limitation, the Company's obligations to reimburse the reasonable fees and expenses of counsel to the Administrative Agent and any fees and expenses payable to the Administrative Agent, the Lenders (including Scotia Capital) and their Affiliates as previously agreed with the Company), shall have been paid in full, (ii) the Lenders under the Existing Loan Agreement shall consent to the Existing Letters of Credit becoming Letters of Credit hereunder and, unless waived by the Administrative Agent, the Exiting Lenders shall have executed and delivered an Exiting Lender Acknowledgment in the form of Exhibit G and (iii) the Administrative Agent shall have received each of the following conditions precedent(unless waived in writing by the Lenders), in form and substance reasonably satisfactory in all respects to the Administrative Agent:
(a) The Agent shall have received the following, each dated the Effective Date, in form and substance satisfactory to the Lenders and in sufficient copies for each Lender:
(i) duly executed counterparts of this Agreement, duly Agreement executed by the BorrowerCompany, each Lender the Issuer and the AgentLenders;
(iib) each Term Note requested by a Lender pursuant to Section 2.16 payable to duly executed counterparts of the order of each such Lender, duly completed and Cash Collateral Agreement executed by the BorrowerCompany, together with a deposit of an amount not less than $35,690,411 in immediately available funds in the Cash Collateral Account;
(iiic) certificates of the Secretary or Assistant Secretary of the Company attaching and certifying copies of (A) the resolutions of the Board board of Directors directors of the Borrower approving this Agreement Company authorizing the execution, delivery and the other Loan Documents to which it is, or is to be, a party, and (B) all documents evidencing other necessary corporate action on the part performance of the Borrower with respect to this Agreement and the other Loan Credit Documents, certified by the Secretary or an Assistant Secretary of the Borrower;
(ivd) a certificate certificates of the Secretary or an Assistant Secretary of the Borrower Company certifying (i) the namesname, title and true signatures and incumbency signature of each officer of the officers Company executing the Credit Documents, and (ii) the Organic Documents of the Borrower authorized to sign this Agreement and the other Loan Documents to which it is, or is to be, a partyCompany;
(ve) certified copies of the Certificate Organic Documents (other than by-laws and other constituent documents not filed with the Secretary of Incorporation (or comparable charter documentState) and by laws of the Borrower, together with all amendments thereto, certified by the Secretary of State, together with certificates of good standing or an Assistant existence, as may be available from the Secretary of State of the Borrowerjurisdiction of incorporation of the Company;
(vif) copies of all Governmental Approvalsdocuments and instruments, if anyincluding all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Company, in connection with the execution, delivery delivery, performance, validity and performance enforceability of this Agreement the Credit Documents and the other Loan Documentsdocuments to be executed and delivered hereunder, certified by the Secretary or an Assistant Secretary of the Borrowerand such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired without any requests for additional information;
(viig) copies a copy of the financial statements referred to in Section 4.1(f)Company's 10-Q for the Fiscal Quarter ending September 30, certified by the Secretary or an Assistant Secretary of the Borrower2003;
(viiih) certificates, reports and other information as the Administrative Agent may reasonably request from the Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, Foreign Plans, and other compensation and employee benefit plans;
(i) certificates, reports, environmental audits and investigations, and other information as the Administrative Agent may reasonably request from the Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(j) certificates, reports and other information as the Administrative Agent may reasonably request from the Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(k) the favorable opinions of:
of (Ai) Foley & Lardner LLP, counsel to the Company, substantially in the for▇ ▇▇ Exh▇▇▇▇ & ▇-1-A, and Alan J. Miller, Esq., general counsel to the Company, substantially i▇ ▇▇▇ ▇▇▇▇ ▇▇ Exhibit H-1-B, addressed to the Administrative Agent and each of the Lenders, (ii) Troutman Sanders LLP, special Georgia counsel to the Company, substan▇▇▇▇▇▇ ▇n ▇▇▇ ▇▇rm of Exhibit H-2, addressed to the Administrative Agent and each of the Lenders and (iii) Mayer, Brown, Rowe & Maw LLP, special New York counsel for to the BorrowerAdministrative Agent, ▇▇▇stantially in the form of Exhibit H-3, addressed to the Administrative Agent and each of the Lenders;
(l) all corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Required Lenders;
(m) a fully-executed copy of the Senior Note Agreement certified by an authorized officer of the Company;
(n) certificate of the Company in substantially the form of Exhibit 3.1C attached hereto and appropriately completed;
(ao) (viii)(A) and as to such other matters as the Majority Lenders, through the Agent, may reasonably request; and
(B) In-house Counsel of the Borrower, an initial Compliance Certificate in substantially the form of Exhibit 3.1(a)(viii)(BD attached hereto, as of September 30, 2003, dated the Effective Date, duly executed (and with all schedules thereto duly completed) and as to such other matters as delivered by the Majority Lenders, through chief financial or accounting officer of the Agent, may reasonably requestCompany;
(ixp) payment (the Lenders shall have received the Company's 6-year projections for its own account or the account of the applicable payees, as applicable) of any fees required to be paid on or before the Effective Date in connection with this Agreement or the Repurchase Documentation, including without limitation the fees described in the Citi Fee Letter and the JPM Fee LetterConsolidated Companies;
(xq) receipt duly executed Notice of final executed Outstanding Letters of Credit in substantially the form of Exhibit B attached hereto and appropriately completed;
(where applicabler) copies the Company shall have paid all attorney fees of the Repurchase Documentation, which shall be satisfactory Administrative Agent to the Agent, and evidence satisfactory extent invoiced on or prior to the Agent that the transactions contemplated by the Repurchase Documentation have commencedEffective Date; and
(xis) such other approvals, opinions evidence satisfactory to it that the Credit Agreement has been executed and documents as any Lender, through delivered by the Agent, may reasonably request.
(b) The following statements shall be true and correctparties thereto, and that any other conditions precedent to the Agent shall have received a certificate of a duly authorized officer of the Borrower, dated the date of the Effective Date and in sufficient copies for each Lender, stating that:
(i) the representations and warranties set forth in Section 4.1 of this Agreement are true and correct on and as of the date of the Effective Date, as though made on and as of such date, and
(ii) no event has occurred and is continuing that constitutes an Unmatured Default or an Event of Default.
(c) The Borrower shall have paid all costs and expenses of the Agent (including counsel fees and disbursements) incurred through (and for which statements effectiveness thereof have been provided prior to) the Effective Datesatisfied.
Appears in 1 contract
Sources: Letter of Credit Facility Agreement (Ironton Iron Inc)
Conditions Precedent to Effective Date. The occurrence of On the Effective Date is subject (i) all obligations of the Company hereunder incurred prior to satisfaction such date (including, without limitation, the Company's obligations to reimburse the reasonable fees and expenses of counsel to the Administrative Agent and any fees and expenses payable to the Administrative Agent, the Lenders (including Scotia Capital) and their Affiliates as previously agreed with the Company), shall have been paid in full, (ii) the Lenders under the Existing Loan Agreement shall consent to the Existing Letters of Credit becoming Letters of Credit hereunder and, unless waived by the Administrative Agent, the Exiting Lenders shall have executed and delivered an Exiting Lender Acknowledgment in the form of Exhibit G and (iii) the Administrative Agent shall have received each of the following conditions precedent(unless waived in writing by the Lenders), in form and substance reasonably satisfactory in all respects to the Administrative Agent:
(a) The Agent shall have received the following, each dated the Effective Date, in form and substance satisfactory to the Lenders and in sufficient copies for each Lender:
(i) duly executed counterparts of this Agreement, duly Agreement executed by the BorrowerCompany, each Lender the Issuer and the AgentLenders;
(iib) each Term Note requested by a Lender pursuant to Section 2.16 payable to duly executed counterparts of the order of each such Lender, duly completed and Cash Collateral Agreement executed by the BorrowerCompany, together with a deposit of an amount not less than $35,690,411 in immediately available funds in the Cash Collateral Account;
(iiic) certificates of the Secretary or Assistant Secretary of the Company attaching and certifying copies of (A) the resolutions of the Board board of Directors directors of the Borrower approving this Agreement Company authorizing the execution, delivery and the other Loan Documents to which it is, or is to be, a party, and (B) all documents evidencing other necessary corporate action on the part performance of the Borrower with respect to this Agreement and the other Loan Credit Documents, certified by the Secretary or an Assistant Secretary of the Borrower;
(ivd) a certificate certificates of the Secretary or an Assistant Secretary of the Borrower Company certifying (i) the namesname, title and true signatures and incumbency signature of each officer of the officers Company executing the Credit Documents, and (ii) the Organic Documents of the Borrower authorized to sign this Agreement and the other Loan Documents to which it is, or is to be, a partyCompany;
(ve) certified copies of the Certificate Organic Documents (other than by-laws and other constituent documents not filed with the Secretary of Incorporation (or comparable charter documentState) and by laws of the Borrower, together with all amendments thereto, certified by the Secretary of State, together with certificates of good standing or an Assistant existence, as may be available from the Secretary of State of the Borrowerjurisdiction of incorporation of the Company;
(vif) copies of all Governmental Approvalsdocuments and instruments, if anyincluding all consents, authorizations and filings, required or advisable under any Requirement of Law or by any material Contractual Obligation of the Company, in connection with the execution, delivery delivery, performance, validity and performance enforceability of this Agreement the Credit Documents and the other Loan Documentsdocuments to be executed and delivered hereunder, certified by the Secretary or an Assistant Secretary of the Borrowerand such consents, authorizations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired without any requests for additional information;
(viig) copies a copy of the financial statements referred to in Section 4.1(f)Company's 10-Q for the Fiscal Quarter ending September 30, certified by the Secretary or an Assistant Secretary of the Borrower2003;
(viiih) certificates, reports and other information as the Administrative Agent may reasonably request from the Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from matters relating to employees of the Consolidated Companies, including employee relations, collective bargaining agreements, Plans, Foreign Plans, and other compensation and employee benefit plans;
(i) certificates, reports, environmental audits and investigations, and other information as the Administrative Agent may reasonably request from the Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from environmental and employee health and safety exposures to which the Consolidated Companies may be subject, and the plans of the Consolidated Companies with respect thereto;
(j) certificates, reports and other information as the Administrative Agent may reasonably request from the Company in order to satisfy the Lenders as to the absence of any material liabilities or obligations arising from litigation (including without limitation, products liability and patent infringement claims) pending or threatened against the Consolidated Companies;
(k) the favorable opinions of:
of (Ai) ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for to the BorrowerCompany, substantially in the form of Exhibit H-1-A, and ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., general counsel to the Company, substantially in the form of Exhibit H-1-B, addressed to the Administrative Agent and each of the Lenders, (ii) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, special Georgia counsel to the Company, substantially in the form of Exhibit H-2, addressed to the Administrative Agent and each of the Lenders and (iii) Mayer, Brown, ▇▇▇▇ & Maw LLP, special New York counsel to the Administrative Agent, substantially in the form of Exhibit H-3, addressed to the Administrative Agent and each of the Lenders;
(l) all corporate proceedings and all other legal matters in connection with the authorization, legality, validity and enforceability of the Credit Documents shall be reasonably satisfactory in form and substance to the Required Lenders;
(m) a fully-executed copy of the Senior Note Agreement certified by an authorized officer of the Company;
(n) certificate of the Company in substantially the form of Exhibit 3.1C attached hereto and appropriately completed;
(ao) (viii)(A) and as to such other matters as the Majority Lenders, through the Agent, may reasonably request; and
(B) In-house Counsel of the Borrower, an initial Compliance Certificate in substantially the form of Exhibit 3.1(a)(viii)(BD attached hereto, as of September 30, 2003, dated the Effective Date, duly executed (and with all schedules thereto duly completed) and as to such other matters as delivered by the Majority Lenders, through chief financial or accounting officer of the Agent, may reasonably requestCompany;
(ixp) payment (the Lenders shall have received the Company's 6-year projections for its own account or the account of the applicable payees, as applicable) of any fees required to be paid on or before the Effective Date in connection with this Agreement or the Repurchase Documentation, including without limitation the fees described in the Citi Fee Letter and the JPM Fee LetterConsolidated Companies;
(xq) receipt duly executed Notice of final executed Outstanding Letters of Credit in substantially the form of Exhibit B attached hereto and appropriately completed;
(where applicabler) copies the Company shall have paid all attorney fees of the Repurchase Documentation, which shall be satisfactory Administrative Agent to the Agent, and evidence satisfactory extent invoiced on or prior to the Agent that the transactions contemplated by the Repurchase Documentation have commencedEffective Date; and
(xis) such other approvals, opinions evidence satisfactory to it that the Credit Agreement has been executed and documents as any Lender, through delivered by the Agent, may reasonably request.
(b) The following statements shall be true and correctparties thereto, and that any other conditions precedent to the Agent shall have received a certificate of a duly authorized officer of the Borrower, dated the date of the Effective Date and in sufficient copies for each Lender, stating that:
(i) the representations and warranties set forth in Section 4.1 of this Agreement are true and correct on and as of the date of the Effective Date, as though made on and as of such date, and
(ii) no event has occurred and is continuing that constitutes an Unmatured Default or an Event of Default.
(c) The Borrower shall have paid all costs and expenses of the Agent (including counsel fees and disbursements) incurred through (and for which statements effectiveness thereof have been provided prior to) the Effective Datesatisfied.
Appears in 1 contract
Sources: Letter of Credit Facility Agreement (Intermet Corp)
Conditions Precedent to Effective Date. The occurrence effectiveness of the Effective Date this Agreement is subject to satisfaction the fulfillment of each of the following conditions precedentconditions:
(a) The Administrative Agent shall have received each of the following, each dated the Effective Date, in form and substance satisfactory to the Lenders and in sufficient copies for each LenderAdministrative Agent:
(i) this Agreement, This Agreement duly executed by the Borrower, each Lender the Lenders, and the Administrative Agent;
(ii) each Term Note Any Loan Notes requested by a any Lender pursuant to Section 2.16 payable to the order of each such Lender, duly completed and executed by the Borrower;
(iii) copies Customary legal opinions of ▇▇▇▇▇▇ Bond ▇▇▇▇▇▇▇▇▇ (US) LLP, counsel to the Credit Parties, addressed to the Lender Group, covering the transactions contemplated by the Loan Documents;
(iv) [Reserved];
(v) A certificate signed by an Authorized Signatory of each Credit Party, including a certificate of incumbency with respect to each Authorized Signatory of such Person, together with appropriate attachments which shall include the following: (A) a copy of the certificate of incorporation or formation, articles of organization, or similar organizational document of such Person certified to be true, complete and correct by the Secretary of State (or relevant equivalent office) of the State of such Person’s incorporation or formation, (B) a true, complete and correct copy of the bylaws, operating agreement, partnership agreement, limited liability company agreement, or similar organizational document of such Person, (C) a true, complete and correct copy of the resolutions (including, without limitation, board resolutions and shareholder resolutions, as applicable) of such Person authorizing the execution, delivery and performance by such Person of the Loan Documents, and with respect to the Borrower, authorizing the borrowings hereunder, and (D) certificates of good standing, existence, or similar appellation from each jurisdiction in which such Person is organized and, to the extent failure to be so qualified in any other jurisdiction could reasonably be expected to have a Materially Adverse Effect, foreign qualifications in those jurisdictions in which such Person is required to be qualified to do business; provided that if a document referenced in clause (A) or (B) was delivered in connection with the Revolving Credit Agreement or not required to be delivered in connection with the Revolving Credit Agreement, then delivery of such document shall not be required so long as the applicable Credit Party delivers an officer’s certificate certifying that no changes have been made to such document, and such document remains in full force and effect;
(vi) An officer’s certificate executed by a Financial Officer of the Borrower certifying (A) the resolutions solvency of the Board of Directors Credit Parties, taken as a whole, as of the Borrower approving Effective Date, (B) that as of the Effective Date, both before and after the effectiveness of this Agreement and the other Loan Documents to which it is, or is to be, a party, and (Bx) all documents evidencing other necessary corporate action on the part of the Borrower with respect to this Agreement representations and the other Loan Documents, certified by the Secretary or an Assistant Secretary warranties of the Borrower;
(iv) a certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names, true signatures and incumbency of the officers of the Borrower authorized to sign Credit Parties under this Agreement and the other Loan Documents are true and correct in all material respects (provided that if any representation or warranty already includes a materiality or material adverse effect qualifier, such representation or warranty is true and correct in all respects and if any such representation or warranty expressly relates to which it isa prior date, such representation or is to be, a party;
(v) copies of the Certificate of Incorporation (or comparable charter document) and by laws of the Borrower, together with all amendments thereto, certified by the Secretary or an Assistant Secretary of the Borrower;
(vi) copies of all Governmental Approvals, if any, required in connection with the execution, delivery and performance of this Agreement and the other Loan Documents, certified by the Secretary or an Assistant Secretary of the Borrower;
(vii) copies of the financial statements referred to in Section 4.1(f), certified by the Secretary or an Assistant Secretary of the Borrower;
(viii) favorable opinions of:
(A) ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Borrower, in substantially the form of Exhibit 3.1
(a) (viii)(A) and as to such other matters as the Majority Lenders, through the Agent, may reasonably request; and
(B) In-house Counsel of the Borrower, in substantially the form of Exhibit 3.1(a)(viii)(B) and as to such other matters as the Majority Lenders, through the Agent, may reasonably request;
(ix) payment (for its own account or the account of the applicable payees, as applicable) of any fees required to be paid on or before the Effective Date in connection with this Agreement or the Repurchase Documentation, including without limitation the fees described in the Citi Fee Letter and the JPM Fee Letter;
(x) receipt of final executed (where applicable) copies of the Repurchase Documentation, which warranty shall be satisfactory to the Agent, and evidence satisfactory to the Agent that the transactions contemplated by the Repurchase Documentation have commenced; and
(xi) such other approvals, opinions and documents as any Lender, through the Agent, may reasonably request.
(b) The following statements shall be true and correct, and the Agent shall have received a certificate of a duly authorized officer of the Borrower, dated the date of the Effective Date and in sufficient copies for each Lender, stating that:
(i) the representations and warranties set forth in Section 4.1 of this Agreement are so true and correct on and as of such prior date) and (y) no Default or an Event of Default is in existence, (C) that there has been no materially adverse change to the date financial information previously delivered to the Administrative Agent under Section 4.1(d) below, (D) that no change in the business, financial condition, results of operations, liabilities (contingent or otherwise), or properties of the Borrower and its Subsidiaries (taken as a whole) shall have occurred since December 31, 2023, which change has had or would be reasonably expected to have a Materially Adverse Effect, and (E) that (x) all material Necessary Authorizations are in full force and effect, are not subject to any pending or threatened reversal or cancellation, and all applicable waiting periods have expired, and that there is no ongoing investigation or inquiry by any Governmental Authority regarding the Loans or the Loan Documents and (y) attached thereto are true, correct, and complete copies of all such material Necessary Authorizations, if any;
(vii) Payment of all fees payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, and payment of fees and expenses of counsel to the Administrative Agent;
(viii) [Reserved];
(ix) An amendment to the Revolving Credit Agreement, duly executed by the Borrower, the Lenders, and the Administrative Agent (each as defined therein); and
(x) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested;
(b) The Lead Arrangers and the Administrative Agent shall have completed their financial, regulatory, and legal due diligence of the Credit Parties, and all credit investigations and background checks, and the results, form, and substance of each of the foregoing items shall be satisfactory to the Administrative Agent;
(c) The Lead Arrangers and the Administrative Agent shall be satisfied that no change in the business, financial condition, results of operations, liabilities (contingent or otherwise), or properties of the Borrower and its Subsidiaries (taken as a whole) shall have occurred since December 31, 2023, which change has had or would be reasonably expected to have a Materially Adverse Effect;
(d) The Lead Arrangers and the Administrative Agent shall have received (i) U.S. GAAP audited consolidated balance sheets of the Borrower and its Subsidiaries and the related consolidated statements of comprehensive income, equity and cash flows for the three most recent fiscal years ended at least 60 days prior to the Effective Date and (ii) U.S. GAAP unaudited consolidated balance sheets of the Borrower and its Subsidiaries and the related consolidated statements of comprehensive income and cash flows for each subsequent fiscal quarter ended at least 40 days before the Effective Date (excluding the fourth quarter of any such fiscal year); provided that in each case the foregoing financial statements required to be delivered by this clause (d) shall meet the requirements of Regulation S-X under the Securities Act, and all other accounting rules and regulations of the Securities and Exchange Commission promulgated thereunder applicable to a registration statement under such Act on Form S-3; provided further that the Borrower’s filing of any required audited financial statements with respect to the Borrower on Form 10-K or required unaudited financial statements with respect to the Borrower on Form 10-Q, in each case, will satisfy the requirements under subclauses (i) or (ii), as applicable, of this clause (d);
(e) [Reserved];
(f) The Lead Arrangers and the Administrative Agent shall have received, no later than three (3) Business Days prior to the Effective Date, all documentation and other information with respect to the Borrower, Defender, Dogwood and their respective Subsidiaries that the Lead Arrangers and the Administrative Agent reasonably determine is required by United States regulatory authorities under any applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, in each case, that shall have been reasonably requested by the Administrative Agent or the Lenders at least ten (10) Business Days prior to the Effective Date; and
(g) The Administrative Agent shall have received from the Lenders all tax forms and certificates required by Section 2.9. On the Effective Date, the Administrative Agent will notify the Lenders and the Borrower in writing of the occurrence of the Effective Date, as though made on and as of such date, and
(ii) no event has occurred and is continuing that constitutes an Unmatured Default or an Event of Default.
(c) The Borrower which notice shall have paid all costs and expenses be conclusive evidence of the Agent (including counsel fees and disbursements) incurred through (and for which statements have been provided prior to) occurrence of the Effective Date.
Appears in 1 contract
Conditions Precedent to Effective Date. The occurrence This Agreement and the amendment and restatement of the Existing Credit Agreement shall become effective upon, and the obligation of the Lenders to make the initial Accomodation following the Effective Date is shall be subject to to, the satisfaction of the following conditions precedent:
(a1) The Agent shall the Borrowers, the Guarantors and each Lender have received indicated their agreement by the following, each dated execution and delivery of the Effective Date, in form and substance satisfactory signature pages hereof to the Lenders and in sufficient copies for each Lender:
(i) this Agreement, duly executed by the Borrower, each Lender and the Administrative Agent;
(ii2) each Term Note requested by a Lender pursuant to Section 2.16 payable delivery to the order Administrative Agent of a certified copy of (i) the charter documents and by-laws (or equivalent governing documents) of each such Lender, duly completed and executed by the Borrower;
Loan Party; (iii) copies of (Aii) the resolutions of the Board board of Directors directors (or any duly authorized committee or other governing body thereof) or of the Borrower shareholders, as the case may be, of each Loan Party approving the entering into of this Agreement (including the amendments to the Existing Credit Agreement effected hereby) and the each other Loan Documents Credit Document to which it is, or is to be, they are a party, and ; (Biii) all documents other instruments evidencing other necessary corporate corporate, company or partnership action on the part of the Borrower each Loan Party and of any required Authorization with respect to this Agreement such matters; and the other Loan Documents, certified by the Secretary or an Assistant Secretary of the Borrower;
(iv) a certificate of the Secretary or an Assistant Secretary of the Borrower certifying the names, names and true signatures and incumbency of the its officers of the Borrower authorized to sign this Agreement Amendment and the other Loan Credit Documents to which it is, manually or is to be, a partyby mechanical means;
(v3) copies delivery to the Administrative Agent of the Certificate a certificate of Incorporation (status, compliance, good standing or comparable charter document) and by laws of the Borrower, together like certificate with all amendments thereto, certified respect to each Loan Party issued by the Secretary or an Assistant Secretary appropriate government official in the jurisdiction of the Borrowerits incorporation;
(vi4) copies receipt of all Governmental Approvalssatisfactory evidence by the Administrative Agent of registration in the necessary jurisdictions of the Encumbrances or notice thereof in favour of the Collateral Agent, if anythe Administrative Agent or the Lenders, as required under Law, created by the Security Documents in connection order to preserve or protect such Encumbrances for the term of the Revolving Credit Facility;
(5) receipt of satisfactory evidence by the Administrative Agent that the Collateral Agent or Administrative Agent (on behalf of the Lenders) shall have a valid and perfected first priority (subject to Permitted Encumbrances) security interest in the Collateral or that arrangements in respect thereof shall have been made that are reasonably satisfactory to the Administrative Agent, in each case, to the extent required by the terms of the Security Documents;
(6) the Administrative Agent shall have received reasonably satisfactory opinions of outside counsel or, with respect to general corporate matters, in-house counsel, in each case, to the Loan Parties in the jurisdiction of incorporation of each such Loan Party and in each jurisdiction specified by the Administrative Agent as is relevant to confirm, inter alia, corporate existence, due authorization, execution, delivery and performance enforceability of this Agreement the Credit Documents, and the other Loan Documents, certified validity and perfection of the Encumbrances created by the Secretary or an Assistant Secretary of the Borrowerapplicable Credit Documents;
(vii7) copies all reasonable fees and documented out-of-pocket expenses owing to the Administrative Agent (including the reasonable fees and out-of-pocket costs of legal counsel to the financial statements referred to Administrative Agent) have been paid in accordance with Section 4.1(f), certified by the Secretary or an Assistant Secretary of the Borrower15.01;
(viii) favorable opinions of:
(A) ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP8) the Administrative shall have received a certificate of a Responsible Officer of Open Text attesting to the Solvency of Open Text and its Subsidiaries, counsel for the Borroweron a consolidated basis and taken as a whole, in substantially form reasonably satisfactory to the form of Exhibit 3.1
(a) (viii)(A) and as to such other matters as the Majority Lenders, through the Administrative Agent, may reasonably request; and
(B) In-house Counsel of the Borrower, in substantially the form of Exhibit 3.1(a)(viii)(B) and as to such other matters as the Majority Lenders, through the Agent, may reasonably request;
(ix9) payment (for its own account or the account of the applicable payees, as applicable) of any fees required to be paid on or before the Effective Date in connection with this Agreement or the Repurchase Documentation, including without limitation the fees described in the Citi Fee Letter and the JPM Fee Letter;
(x) receipt of final executed (where applicable) copies of the Repurchase Documentation, which shall be satisfactory to the Agent, and evidence satisfactory to the Agent that the transactions contemplated by the Repurchase Documentation have commenced; and
(xi) such other approvals, opinions and documents as any Lender, through the Agent, may reasonably request.
(b) The following statements shall be true and correct, and the Administrative Agent shall have received a certificate of a duly authorized officer Responsible Officer of Open Text confirming that, after giving effect to the amendment and restatement of the BorrowerExisting Credit Agreement, dated the date of the Effective Date and in sufficient copies for each Lenderas contemplated hereby, stating that:
(i) the representations and warranties set forth contained in Section 4.1 of this Agreement Article 6 are true and correct in all material respects on and as of the date of the Effective Date, as though made except to the extent such representations and warranties specifically relate to an earlier date, in which case they were true and correct in all material respects on and as of such earlier date, and
and (ii) no event has occurred and is continuing that constitutes an Unmatured would constitute a Default or an Event of Default.; and
(c10) The upon the reasonable request of any Lender made at least ten days prior to the Effective Date, each Borrower shall have paid all costs provided to such Lender the documentation and expenses of other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the Agent (including counsel fees and disbursements) incurred through (and for which statements have been provided PATRIOT Act, in each case at least five days prior to) to the Effective DateDate (or such later date as the Administrative Agent may reasonably agree).
Appears in 1 contract
Sources: Credit Agreement (Open Text Corp)
Conditions Precedent to Effective Date. The occurrence of Each Lender’s respective Commitments hereunder shall become effective, on the Effective Date is terms and subject to satisfaction the other conditions set forth herein, on the date (the “Effective Date”) that each of the following conditions precedent:
is satisfied (or waived in accordance with Section 9.01): (a) The Agent Each of the following documents, which shall have received the following, each be dated the Effective Date, Date and in form and substance satisfactory to the Lenders and in sufficient copies for each LenderAdministrative Agent:
(i) this AgreementUpon request of any Lender, duly executed the Revolving Loan Notes payable by the Borrower, each Lender and the Agent;
(ii) each Term Note requested by a Lender pursuant to Section 2.16 payable any Borrower to the order of each such Lender, duly completed and executed by the Borrower;
(ii) A Joinder Agreement to this Agreement, duly executed and delivered by each of the Guarantors, pursuant to which each of the Guarantors guarantee the Secured Obligations, and the Loan Parties shall duly executed and delivered copies of any other Loan Documents as the Administrative Agent shall reasonably request; (iii) Certified copies of (A) the charter and by-laws of each Loan Party, (B) the resolutions of the Board board of Directors directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of each of the Borrower approving this Agreement and the other Loan Documents to which it is, or is to be, a party, and (BC) all documents evidencing other necessary corporate action on the part of the Borrower and governmental approvals, if any, with respect to this Agreement the Loan Documents and the other (D) a long form good standing certificate (or its equivalent) for each such Loan Documents, certified by the Secretary or an Assistant Secretary Party from its jurisdiction of the Borrower;
organization; (iv) a A certificate of the Secretary secretary or an Assistant Secretary assistant secretary (or equivalent officer) of the Borrower each Loan Party certifying the names, names and true signatures and incumbency of the officers of the Borrower each Loan Party authorized to sign this Agreement Agreement, the Loan Guaranty and the Notes and the other Loan Documents to which it is, or is to be, a party;
(v) copies of the Certificate of Incorporation (or comparable charter document) and by laws of the Borrower, together with all amendments thereto, certified by the Secretary or an Assistant Secretary of the Borrower;
(vi) copies of all Governmental Approvals, if any, required in connection with the execution, delivery and performance of this Agreement and the other Loan Documents, certified by the Secretary or an Assistant Secretary of the Borrower;
(vii) copies of the financial statements referred to in Section 4.1(f), certified by the Secretary or an Assistant Secretary of the Borrower;
(viii) favorable opinions of:
(A) ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Borrower, in substantially the form of Exhibit 3.1
(a) (viii)(A) and as to such other matters as the Majority Lenders, through the Agent, may reasonably request; and
(B) In-house Counsel of the Borrower, in substantially the form of Exhibit 3.1(a)(viii)(B) and as to such other matters as the Majority Lenders, through the Agent, may reasonably request;
(ix) payment (for its own account or the account of the applicable payees, as applicable) of any fees required documents to be paid on or before the Effective Date in connection with this Agreement or the Repurchase Documentation, including without limitation the fees described in the Citi Fee Letter and the JPM Fee Letter;
(x) receipt of final executed (where applicable) copies of the Repurchase Documentation, which shall be satisfactory to the Agent, and evidence satisfactory to the Agent that the transactions contemplated by the Repurchase Documentation have commenceddelivered hereunder; and
(xi) such other approvals, opinions and documents as any Lender, through the Agent, may reasonably request.
(b) The following statements shall be true and correct, and the Agent shall have received a certificate of a duly authorized officer of the Borrower, dated the date of the Effective Date and in sufficient copies for each Lender, stating that:
(i) the representations and warranties set forth in Section 4.1 of this Agreement are true and correct on and as of the date of the Effective Date, as though made on and as of such date, and
(ii) no event has occurred and is continuing that constitutes an Unmatured Default or an Event of Default.
(c) The Borrower shall have paid all costs and expenses of the Agent (including counsel fees and disbursements) incurred through (and for which statements have been provided prior to) the Effective Date.75 -
Appears in 1 contract
Sources: Credit Agreement (Livent Corp.)
Conditions Precedent to Effective Date. The occurrence of Each Lender’s respective Commitments hereunder shall become effective, on the Effective Date is terms and subject to satisfaction the other conditions set forth herein, on the date (the “Effective Date”) that each of the following conditions precedent:is satisfied (or waived in accordance with Section 9.01):
(a) The Agent Each of the following documents, which shall have received the following, each be dated the Effective Date, Date and in form and substance satisfactory to the Lenders and in sufficient copies for each LenderAdministrative Agent:
(i) this AgreementUpon request of any Lender, duly executed the Revolving Loan Notes payable by the Borrower, each Lender and the Agent;
(ii) each Term Note requested by a Lender pursuant to Section 2.16 payable any Borrower to the order of each such Lender;
(ii) A Joinder Agreement to this Agreement, duly completed executed and delivered by each of the Guarantors, pursuant to which each of the Guarantors guarantee the Secured Obligations, and the Loan Parties shall duly executed by and delivered copies of any other Loan Documents as the BorrowerAdministrative Agent shall reasonably request;
(iii) Certified copies of (A) the charter and by-laws of each Loan Party, (B) the resolutions of the Board board of Directors directors (or equivalent governing body) of each Loan Party authorizing the execution, delivery and performance of each of the Borrower approving this Agreement and the other Loan Documents to which it is, or is to be, a party, and (BC) all documents evidencing other necessary corporate action on the part of the Borrower and governmental approvals, if any, with respect to this Agreement the Loan Documents and the other (D) a long form good standing certificate (or its equivalent) for each such Loan Documents, certified by the Secretary or an Assistant Secretary Party from its jurisdiction of the Borrowerorganization;
(iv) a A certificate of the Secretary secretary or an Assistant Secretary assistant secretary (or equivalent officer) of the Borrower each Loan Party certifying the names, names and true signatures and incumbency of the officers of the Borrower each Loan Party authorized to sign this Agreement Agreement, the Loan Guaranty and the Notes and the other Loan Documents documents to which it is, or is to be, a partybe delivered hereunder;
(v) copies A favorable opinion of the Certificate of Incorporation (or comparable charter document) and by laws of the Borrower, together with all amendments thereto, certified by the Secretary or an Assistant Secretary of the Borrower;
(vi) copies of all Governmental Approvals, if any, required in connection with the execution, delivery and performance of this Agreement and the other Loan Documents, certified by the Secretary or an Assistant Secretary of the Borrower;
(vii) copies of the financial statements referred to in Section 4.1(f), certified by the Secretary or an Assistant Secretary of the Borrower;
(viii) favorable opinions of:
(A) ▇▇▇▇▇ & ▇▇, ▇▇▇▇▇ & Bockius LLP, counsel for to the BorrowerLoan Parties, and (B) McGuireWoods LLP, local counsel to the Loan Parties, in substantially each case, in form and substance reasonably accepted to the form of Exhibit 3.1
(a) (viii)(A) Administrative Agent and Lenders and covering such customary matters relating hereto as to such other matters as the Majority Lendersany Lender, through the Agent, may reasonably request; and
(B) In-house Counsel of the Borrower, in substantially the form of Exhibit 3.1(a)(viii)(B) and as to such other matters as the Majority Lenders, through the Administrative Agent, may reasonably request;
(ixvi) payment A certificate of an officer or any authorized person of Livent to the effect that (for its own account A) the representations and warranties contained in the Loan Documents are correct (other than any such representations or the account warranties which, by their terms, refer to a prior date) and (B) no event has occurred and is continuing which constitutes a Default; and
(vii) A completed Perfection Certificate duly executed and delivered by each Loan Party, together with all attachments contemplated thereby;
(b) The results of recent customary lien searches, which shall reveal no Liens on any of the applicable payeesassets of any Loan Party except for Liens permitted by Section 6.04(b) or discharged on or prior to the Effective Date pursuant to a pay-off letter or other documentation reasonably satisfactory to the Administrative Agent;
(c) The Administrative Agent shall have received (i) the certificates representing the shares of Stock pledged pursuant to the Security Agreement, as applicabletogether with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof and (ii) to the extent required to be delivered pursuant to the Security Agreement, each promissory note (if any) 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;
(d) Each document (including any UCC financing statement) required by the Collateral Documents or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent, for the benefit of the Lenders, a perfected Lien on the Collateral described therein (but only to the extent required therein), prior and superior in right to any other Person (other than with respect to Liens expressly permitted by Section 6.04(b), shall be in proper form for filing, registration or recordation;
(e) Evidence of insurance coverage in form, scope, and substance reasonably satisfactory to the Administrative Agent and otherwise in compliance with the terms of Section 6.03(e) of any this Agreement and Section 4.10 of the Security Agreement;
(f) Confirmation that the Borrowers have paid all fees (including amounts then payable under the Fee Letter) required to be paid on or before the Effective Date and all expenses of the Administrative Agent and the Lenders (including the fees and expenses of counsel to the Administrative Agent) for which invoices have been presented at least one (1) Business Day prior to the Effective Date;
(g) The representations and warranties contained in the Loan Documents (except any representations and warranties relating to the Lithium IPO) are correct in all material respects (except any representations and warranties that are qualified by materiality, which shall be true and correct in all respects) on and as of the Effective Date;
(h) Such certificates, documents, agreements and information respecting any Borrowers as any Lender through the Administrative Agent may reasonably request at least three (3) Business Days prior to the Effective Date, all documentation and other information relating to the Loan Parties required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act and to the extent applicable to any Borrower that constitutes a “legal entity customer” under 31 C.F.R. §1010.230, a certification regarding beneficial ownership as required by 31 C.F.R. §1010.230, in each case, as reasonably requested by any of the Administrative Agent and the Lenders at least ten (10) Business Days prior to the Effective Date, and a properly completed and signed IRS Form W-9 for each Loan Party;
(i) The Arrangers shall have received, to the extent not included as exhibits in the Disclosure Documents, substantially final drafts of the Separation Agreements prior to the Effective Date. The FMC Lithium Assets Contribution shall have been consummated in compliance with applicable Law and in accordance with the terms of the applicable Separation Agreements, in each case, except with respect to any changes that would not be materially adverse to the Lenders without the prior written consent of the Arrangers. None of the Separation Agreements in effect on the Effective Date shall have been altered, amended or otherwise modified or supplemented and no condition therein shall have been waived and no consent shall have been given thereunder, in each case, in a manner materially adverse to the Lenders without the prior written consent of the Arrangers;
(j) All material governmental and third-party consents or approvals necessary in connection with this Agreement and the FMC Lithium Assets Contribution or material to the continuing operations of the Borrowers and their respective Subsidiaries shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any governmental authority having appropriate jurisdiction which would restrain or prevent or otherwise impose materially adverse conditions thereon or the Repurchase Documentationfinancing thereof, including including: (i) final approval by the board of directors of FMC, (ii) consents to assignments or other satisfactory evidence of continuity, without limitation material disruption or the fees incurring of costs materially in excess of those described in the Citi Fee Letter Disclosure Documents as in effect on the Effective Date, of material existing operations and the JPM Fee Letter;
(x) receipt of final executed (where applicable) copies contractual arrangements and commitments of the Repurchase Documentation, which shall be satisfactory assets transferred to either Borrower pursuant to the AgentFMC Lithium Assets Contribution, and evidence satisfactory (iii) releases of Liens on the assets transferred to either Borrower pursuant to the Agent that the transactions contemplated by the Repurchase Documentation have commencedFMC Lithium Assets Contribution attributable to FMC or its lien creditors other than Liens permitted under this Agreement; and
(xi) such other approvals, opinions and documents as any Lender, through the Agent, may reasonably request.
(bk) The following statements shall be true and correct, and the Agent Lenders shall have received a certificate of a duly authorized officer of the Borrower, dated the date of the Effective Date and in sufficient copies for each Lender, stating that:
at least five (i5) the representations and warranties set forth in Section 4.1 of this Agreement are true and correct on and as of the date of Business Days before the Effective Date, as though made the financial statements and other financial information delivered by Livent in connection with the filing of a registration statement on and as of such date, and
(ii) no event has occurred and is continuing that constitutes an Unmatured Default or an Event of DefaultForm S-1 with the SEC for the Lithium IPO.
(c) The Borrower shall have paid all costs and expenses of the Agent (including counsel fees and disbursements) incurred through (and for which statements have been provided prior to) the Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Livent Corp.)
Conditions Precedent to Effective Date. The occurrence Each Lender’s obligation to advance its Applicable Percentage of the Effective Date Tranche A Loan is subject to the satisfaction (or waiver in accordance with Section 11.5 hereof) of the following conditions precedentconditions:
(a) The Collateral Agent shall have received received:
(i) copies of the followingLoan Documents (including the Disclosure Letter and the Collateral Documents but excluding any Control Agreements or bailee waivers, as applicable, described in Schedule 5.16 of the Disclosure Letter) executed and delivered by each applicable Credit Party, as applicable;
(ii) (x) true, correct and complete copies of the Operating Documents of each of the Credit Parties, and (y) a Secretary’s Certificate, dated the Effective Date, certifying that the foregoing copies are true, correct and complete (such Secretary’s Certificate to be in form and substance reasonably satisfactory to the Lenders Collateral Agent) and in sufficient copies attaching Borrowing Resolutions with respect to the Loan Documents and the Term Loans for each Lender:
(i) this AgreementCredit Party, duly executed by the Borrower, each Lender in form and the Agent;
(ii) each Term Note requested by a Lender pursuant to Section 2.16 payable substance reasonably satisfactory to the order of each such Lender, duly completed and executed by the BorrowerCollateral Agent;
(iii) copies of (A) the resolutions of Perfection Certificate for Borrower and its Subsidiaries, in form and substance reasonably satisfactory to the Board of Directors of the Borrower approving this Agreement and the other Loan Documents to which it is, or is to be, a party, and (B) all documents evidencing other necessary corporate action on the part of the Borrower with respect to this Agreement and the other Loan Documents, certified by the Secretary or an Assistant Secretary of the BorrowerCollateral Agent;
(iv) a good standing certificate for each Credit Party, certified by the Secretary of State (or the equivalent thereof) of the Secretary State of incorporation (or an Assistant Secretary formation if applicable) of such Credit Party as of a date no earlier than thirty (30) days prior to the Borrower certifying the names, true signatures and incumbency of the officers of the Borrower authorized to sign this Agreement and the other Loan Documents to which it is, or is to be, a partyTranche A Closing Date;
(v) copies an opinion of the Certificate of Incorporation (or comparable charter document) and by laws of the Borrower, together with all amendments thereto, certified by the Secretary or an Assistant Secretary of the Borrower;
(vi) copies of all Governmental Approvals, if any, required in connection with the execution, delivery and performance of this Agreement and the other Loan Documents, certified by the Secretary or an Assistant Secretary of the Borrower;
(vii) copies of the financial statements referred to in Section 4.1(f), certified by the Secretary or an Assistant Secretary of the Borrower;
(viii) favorable opinions of:
(A) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to Borrower, addressed to the Collateral Agent and each Lender, in form and substance reasonably satisfactory to the Collateral Agent;
(vi) evidence that the insurance policies required by Section 5.5 hereof are in full force and effect, together with appropriate evidence showing loss payable or additional insured clauses or endorsements in favor of the Collateral Agent for the benefit of Lenders and the other Secured Parties (such evidence to be in form and substance reasonably satisfactory to the Collateral Agent, it being understood that “under written contract” or similar general endorsements shall be reasonably satisfactory to the Collateral Agent);
(vii) all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the U.S.A. Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”);
(viii) a certificate of the Executive Vice President, Corporate and Administrative Affairs and Chief Financial Officer of Borrower, substantially in substantially the form of Exhibit 3.1
(a) (viii)(A) and D attached hereto, attesting that, as to such other matters as the Majority Lenders, through the Agent, may reasonably request; and
(B) In-house Counsel of the BorrowerEffective Date, in substantially after giving effect to the form transactions occurring on such date, including the incurrence of Exhibit 3.1(a)(viii)(B) Indebtedness under the Tranche A Note, that Borrower and as to such other matters as the Majority Lendersits Subsidiaries, through the Agenton a consolidated basis, may reasonably requestare Solvent;
(ix) payment (for its own account or the account of the applicable payeesa certificate, as applicable) of any fees required to be paid on or before dated the Effective Date and signed by a Responsible Officer of Borrower, confirming satisfaction of the conditions precedent set forth in connection with this Agreement or Section 3.1 (such certificate to be in form and substance reasonably satisfactory to the Repurchase Documentation, including without limitation the fees described in the Citi Fee Letter and the JPM Fee LetterCollateral Agent);
(x) receipt a certificate, dated the Effective Date and signed by a Responsible Officer of final executed (where applicable) copies Borrower, confirming there is no litigation, public or private, or administrative proceeding, governmental investigation or other legal or regulatory development, pending or, to the Knowledge of Borrower, threatened, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Change, except as set forth on Schedule 4.7 of the Repurchase Documentation, which shall Disclosure Letter (such certificate to be in form and substance reasonably satisfactory to the Collateral Agent, and evidence satisfactory to the Agent that the transactions contemplated by the Repurchase Documentation have commenced); and
(xi) such other approvals(i) the audited consolidated financial statements and the related audited consolidated statements of operations, opinions cash flows and documents changes in equity of Borrower and its Subsidiaries as any Lenderat December 31, through 2016; (ii) the Agentunaudited consolidated balance sheets and the related unaudited consolidated statements of operations, may reasonably requestcash flows and changes in equity of Borrower and its Subsidiaries as of the fiscal quarters ended March 31, 2017, June 30, 2017 and September 30, 2017; and (iii) for the interim period from the most recent audited period to the Effective Date, the unaudited consolidated balance sheets (including the notes thereto) for each monthly period completed at least thirty (30) days prior to the Effective Date; provided, however, that the filing of the required financial statements on Form 10-K and Form 10-Q with, and in accordance with the requirements of the SEC by Borrower will constitute receipt by Lender of the financial statements described in clauses (i) and (ii) above.
(b) The following statements each Credit Party shall have obtained all Governmental Approvals and all consents of other Persons, in each case that are necessary or advisable in connection with the transactions contemplated by the Loan Documents and each of the foregoing shall be true in full force and correcteffect and in form and substance reasonably satisfactory to the Collateral 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 or the financing thereof 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 Agent time for any applicable agency to take action to set aside its consent on its own motion shall have received a certificate of a duly authorized officer of the Borrower, dated the date of the Effective Date and in sufficient copies for each Lender, stating that:
(i) the representations and warranties set forth in Section 4.1 of this Agreement are true and correct on and as of the date of the Effective Date, as though made on and as of such date, expired; and
(ii) no event has occurred and is continuing that constitutes an Unmatured Default or an Event of Default.
(c) The Borrower shall have paid all costs and expenses of the Agent (including counsel fees and disbursements) incurred through (and for which statements have been provided prior to) the Effective Date.
Appears in 1 contract