Conditions to Effectiveness of Amendment. The effectiveness of this Amendment is subject to satisfaction of the following conditions precedent: (a) Agent shall have received a copy of this Amendment (including the Consent and Reaffirmation attached hereto), executed by Borrower, each Loan Party, Required Lenders and each Lender holding any outstanding Term B Loans; (b) No Default or Event of Default shall have occurred and be continuing as of the date of this Amendment; (c) On the date hereof, Borrower shall have made (and Agent shall have received in immediately available funds from Borrower) a voluntary prepayment of the Term B Loans in an amount equal to $6,000,000, which $6,000,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity; (d) On the date hereof, Agent shall have received $1,500,000 in immediately available funds from the Cash Reserve Account, which the parties hereto agree shall be applied as a voluntary prepayment of the Term B Loans (such that, taken together with the prepayment described in clause (c) immediately above, the Term B Loans shall be paid down by an aggregate amount equal to $7,500,000 on the date hereof), which $1,500,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity; (e) Agent shall have received the Amendment Fee (as defined below) for the benefit of the applicable Lenders, and Borrower shall have paid all other fees and expenses (including fees and expenses of counsel to the extent invoiced) of Agent due and payable as of the date hereof in connection with this Amendment, the Credit Agreement and the other Loan Documents; and (f) Agent shall have received the following documents in form and substance satisfactory to Agent: (x) unless otherwise deemed to be a post-closing obligation by Agent, an amendment to the Mortgage in favor of Agent with respect to the real property owned by Performant Recovery, Inc. located in St. ▇▇▇▇▇▇▇▇▇ County, Oregon (the "Mortgage Modification"), (y) secretary's or officer's certificates and resolutions with respect to Holdings and each of its Subsidiaries with respect to the organizational documents of each such Person and necessary corporate approval by each such Person to enter into this Amendment, and (z) legal opinions from outside counsel to Holdings and its Subsidiaries (including Nevada local counsel with respect to Borrower) with respect to such matters pertaining to this Amendment as are reasonably determined to be applicable by Agent.
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Conditions to Effectiveness of Amendment. The effectiveness of this Amendment and the obligation of the Banks to make Revolving Credit Loans under their increased Commitments is subject to the satisfaction of the following conditions precedentconditions:
(aA) Agent Replacement Revolving Credit Notes in the principal amount of the increased Commitments shall have received a copy of this Amendment (including been delivered to the Consent and Reaffirmation attached hereto), executed by Borrower, each Loan Party, Required Lenders and each Lender holding any outstanding Term B LoansBanks;
(bB) The representations and warranties of the Borrower contained in Article 5 of the Credit Agreement shall be true as though such representations and warranties had been made today, except (i) for representations and warranties which expressly relate solely to an earlier date or time, which representations and warranties shall continue to be true as of the specific dates or times referred to therein and (ii) as indicated on the updated Credit Agreement disclosure schedules attached hereto;
(C) The Borrower shall have performed and complied with all covenants and conditions of the Credit Agreement as amended hereby;
(D) No Event of Default or Event of Potential Default shall have occurred and be continuing as or shall exist;
(E) No Material Adverse Change in the Borrower or any of its Subsidiaries shall have occurred since the date of this Amendmentthe Borrower's financial statements most recently reviewed by the Banks;
(cF) On the date hereof, The Borrower shall have made (and Agent shall have received in immediately available funds from Borrower) a voluntary prepayment of the Term B Loans in an amount equal to $6,000,000, which $6,000,000 voluntary prepayment of the Term B Loans shall be applied delivered to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(d) On the date hereof, Agent shall have received $1,500,000 in immediately available funds from the Cash Reserve Account, which the parties hereto agree shall be applied as a voluntary prepayment of the Term B Loans (such that, taken together with the prepayment described in clause (c) immediately above, the Term B Loans shall be paid down by an aggregate amount equal to $7,500,000 on the date hereof), which $1,500,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(e) Agent shall have received the Amendment Fee (as defined below) for the benefit of the applicable Lenders, and Borrower shall have paid all other fees and expenses (including fees and expenses of counsel to the extent invoiced) of Agent due and payable as each Bank a certificate of the date hereof Secretary or Assistant Secretary of the Borrower, certifying as to (i) all action taken by the Borrower in connection with this Amendment, the replacement Revolving Credit Agreement Notes, and any related Loan Documents (collectively, the "Amendment Documents"); (ii) the names of the officer or officers authorized to sign this Amendment, the replacement Revolving Credit Notes, and the other related Loan Documents; andand (iii) the absence of any changes in the certificate of incorporation and bylaws of the Borrower as they were in effect on March 31, 1997, the Closing Date under the Credit Agreement;
(fG) Agent The Borrower shall have received the following documents in form and substance satisfactory to Agent: (x) unless otherwise deemed to be a post-closing obligation by Agent, an amendment delivered to the Mortgage in favor Agent for the benefit of Agent with respect to the real property owned by Performant Recovery, Inc. located in St. each Bank a written opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ County▇▇▇, Oregon (general counsel to the "Mortgage Modification")Borrower, (y) secretary's or officer's certificates as to the corporate existence and resolutions with respect to Holdings good standing of the Borrower; the due authorization, execution, delivery and each enforceability of its Subsidiaries with respect to the Amendment Documents; the absence of conflicts between the Amendment Documents and the organizational documents of each the Borrower, applicable laws, and other debt obligations of the Borrower; the absence of material litigation or claims against the Borrower; and such Person other matters as the Agent may reasonably request;
(H) The Borrower shall have delivered to the Agent satisfactory evidence that the "Majority Holders" under the Alco Note have consented to the increase in the amount of "Superior Debt" permitted under the Alco Note to $125,000,000, plus interest; and
(I) The Borrower shall have paid to the Agent, for itself and necessary corporate approval by each such Person to enter into for the account of the Banks, all commitment and other fees due in connection with this Amendment, and (z) legal opinions from outside counsel to Holdings and its Subsidiaries (including Nevada local counsel with respect to Borrower) with respect to such matters pertaining to this Amendment as are reasonably determined to be applicable by Agent.
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Conditions to Effectiveness of Amendment. The effectiveness of this Amendment is subject to the amendments set forth in Section 2 hereof shall occur on the date of the satisfaction of the following conditions precedent:precedent (such date, the “Amendment Effective Date”):
a. the Borrowers, each other Loan Party (aother than Loan Parties organized in France, Luxembourg and Italy) and the Required Lenders shall have executed and delivered counterparts of this Amendment to the Administrative Agent and the Required Lenders and each of the Term Lenders (including each Assuming Lender) shall have executed and delivered counterparts of this Amendment to the Administrative Agent;
b. the Administrative Agent shall have received the Collateral Document set forth on Schedule A hereto, executed and delivered by the applicable Loan Parties and the Collateral Agent;
c. each of the representations and warranties contained in Section 6 of this Amendment 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 Effective Date;
d. at the time of and immediately after giving effect to this Amendment and the transactions occurring on the Amendment Effective Date, no Default or Event of Default exists;
e. the Administrative Agent shall have received a copy of this certificate dated the Amendment (including the Consent Effective Date and Reaffirmation attached hereto), executed signed by Borrower, each Loan Party, Required Lenders and each Lender holding any outstanding Term B Loans;
(b) No Default or Event of Default shall have occurred and be continuing as a Responsible Officer of the date of this Amendment;Borrower Representative, confirming compliance with the conditions set forth in Sections 4(c) and 4(d) hereof; and
(c) On f. the date hereof, Borrower shall have made (and Administrative Agent shall have received received:
a. for distribution to the Amendment Arranger, all fees and expenses agreed to by the Borrowers or the Borrower Representative that are due and payable on or before the Amendment Effective Date (including reasonable and documented out-of-pocket fees, expenses and disbursements of legal counsel);
b. for distribution to each Non-Consenting Term Lender (as defined in immediately available funds from BorrowerSection 12(e) a voluntary prepayment of the Term B Loans in below), an amount equal to $6,000,000, which $6,000,000 voluntary prepayment the sum of (x) the Term B Loans shall be applied principal of and interest accrued to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(d) On the date hereof, Agent shall have received $1,500,000 in immediately available funds from the Cash Reserve Account, which the parties hereto agree shall be applied as a voluntary prepayment of the Term B Loans (such that, taken together with the prepayment described in clause (c) immediately above, the Term B Loans shall be paid down by an aggregate amount equal to $7,500,000 Amendment Effective Date on the date hereof), which $1,500,000 voluntary prepayment outstanding Loans of the such Non-Consenting Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(e) Agent shall have received the Amendment Fee Lender (as defined below) for the benefit of the applicable Lenders, and Borrower shall have paid all other fees and expenses (including fees and expenses of counsel to the extent invoiced) of Agent due and payable as of the date hereof in connection with this Amendment, the Credit Agreement and the other Loan Documents; and
(f) Agent shall have received the following documents in form and substance satisfactory to Agent: (x) unless otherwise deemed to be a post-closing obligation by Agent, an amendment to the Mortgage in favor of Agent with respect to the real property owned by Performant Recovery, Inc. located in St. ▇▇▇▇▇▇▇▇▇ County, Oregon (the "Mortgage Modification"), (y) secretary's all fees and other amounts owing to or officer's certificates and resolutions with respect to Holdings and each accrued for the account of its Subsidiaries with respect to such Non-Consenting Term Lender under the organizational documents of each such Person and necessary corporate approval by each such Person to enter into this Amendment, and (z) legal opinions from outside counsel to Holdings and its Subsidiaries Existing Credit Agreement (including Nevada local counsel with respect to Borrower) with respect to such matters pertaining to this Amendment as are reasonably determined to be applicable by Agent.any amounts under Section 3.06 of the Existing Credit Agreement); and
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Conditions to Effectiveness of Amendment. The effectiveness This Amendment shall become effective as of September 30, 2012 if and only if prior to such date the Agent shall have received executed counterparts of this Amendment is subject to satisfaction of from the Majority Lenders and the following conditions precedent:precedent have been satisfied (September 30, 2012, if such conditions are so satisfied herein called the “Effective Date”):
(a) Agent The Agent’s receipt of the following, each of which shall have received a copy of this Amendment be originals or telecopies (including the Consent and Reaffirmation attached hereto)followed promptly by originals) unless otherwise specified, each properly executed by Borrower, each a Responsible Officer of the signing Loan Party, Required Lenders Party and each Lender holding any outstanding Term B Loans;
(b) No Default or Event of Default shall have occurred and be continuing as of the date of this Amendment;
(c) On the date hereof, Borrower shall have made (and Agent shall have received in immediately available funds from Borrower) a voluntary prepayment of the Term B Loans in an amount equal to $6,000,000, which $6,000,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(d) On the date hereof, Agent shall have received $1,500,000 in immediately available funds from the Cash Reserve Account, which the parties hereto agree shall be applied as a voluntary prepayment of the Term B Loans (such that, taken together with the prepayment described in clause (c) immediately above, the Term B Loans shall be paid down by an aggregate amount equal to $7,500,000 on the date hereof), which $1,500,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(e) Agent shall have received the Amendment Fee (as defined below) for the benefit of the applicable Lenders, and Borrower shall have paid all other fees and expenses (including fees and expenses of counsel to the extent invoiced) of Agent due and payable as of the date hereof in connection with this Amendment, the Credit Agreement and the other Loan Documents; and
(f) Agent shall have received the following documents in form and substance satisfactory to the Agent and in such number of counterparts as may be requested by the Agent: :
(xi) unless counterparts of the Amendment Documents executed by the applicable Loan Parties.
(ii) a certificate on behalf of each applicable Loan Party certifying that none of the resolutions, incumbency certificates, Organization Documents and/or certificates of Responsible Officers of each Loan Party as the Agent has previously required evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with the Loan Documents to which such Loan Party is a party have been amended or are otherwise deemed inaccurate since they were delivered and certifying resolutions authorizing this Amendment.
(iii) such other documents or certificates as the Agent shall reasonably request.
(b) Any fees required to be a post-closing obligation paid to the Agent or any Lender on or before the Effective Date shall have been paid.
(c) Unless waived by the Agent, an amendment the Borrower shall have paid all fees, charges and disbursements of counsel to the Mortgage in favor of Agent with respect to the real property owned by Performant Recoveryextent invoiced prior to or on the Effective Date, Inc. located in St. ▇▇▇▇▇▇▇▇▇ Countyplus such additional amounts of such fees, Oregon (the "Mortgage Modification")charges and disbursements as shall constitute its reasonable estimate of such fees, (y) secretary's charges and disbursements incurred or officer's certificates and resolutions with respect to Holdings and each of its Subsidiaries with respect to the organizational documents of each such Person and necessary corporate approval by each such Person to enter into this Amendment, and (z) legal opinions from outside counsel to Holdings and its Subsidiaries (including Nevada local counsel with respect to Borrower) with respect to such matters pertaining to this Amendment as are reasonably determined to be applicable 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 Agent).
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Conditions to Effectiveness of Amendment. The effectiveness of this This Amendment is subject to satisfaction of shall become effective on the date on which the following conditions precedent:precedent have been satisfied or waived (the “Second Amendment Effective Date”):
(a) The Administrative Agent shall have received a copy counterpart of this Amendment (including the Consent and Reaffirmation attached hereto)Amendment, executed and delivered by a duly authorized officer of each of (A) MWVC, (B) the Borrower, each Loan Party, (C) Lenders constituting the Required Lenders and each Lender holding any outstanding Term B Loans;(D) the Administrative Agent.
(b) After giving effect to this Amendment, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of the Second 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 such earlier date), except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects.
(c) No Default or Event of Default has occurred and is continuing on the Second Amendment Effective Date or after giving effect to the amendments contemplated herein and the extensions of credit requested to be made on the Second Amendment Effective Date.
(d) All governmental and third party approvals necessary in connection with the transactions contemplated hereby and by the Credit Agreement shall have occurred been obtained and be continuing as of in full force and effect, and all applicable waiting periods shall have expired without any action being taken or, to the date of this Amendment;Borrower’s knowledge, threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the financing contemplated hereby.
(ce) On The Lenders and the date hereof, Borrower shall have made (and Administrative Agent shall have received in immediately available funds from Borrower) a voluntary prepayment of the Term B Loans in an amount equal all fees required to $6,000,000be paid, and all expenses for which $6,000,000 voluntary prepayment of the Term B Loans shall be applied invoices have been presented to the scheduled installments of Borrower on or before the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(d) On the date hereof, Agent shall have received $1,500,000 in immediately available funds from the Cash Reserve Account, which the parties hereto agree shall be applied as a voluntary prepayment of the Term B Loans (such that, taken together with the prepayment described in clause (c) immediately above, the Term B Loans shall be paid down by an aggregate amount equal to $7,500,000 on the date hereof), which $1,500,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(e) Agent shall have received the Second Amendment Fee (as defined below) for the benefit of the applicable Lenders, and Borrower shall have paid all other fees and expenses (including fees and expenses of counsel to the extent invoiced) of Agent due and payable as of the date hereof in connection with this Amendment, the Credit Agreement and the other Loan Documents; andEffective Date.
(f) The Administrative Agent and the other Lenders shall have received the following documents in form and substance satisfactory to Agent: (x) unless otherwise deemed to be a post-closing obligation by Agentreceived, an amendment at least 5 days prior to the Mortgage in favor Second Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, previously requested of Agent with respect to the real property owned Borrower by Performant Recovery, Inc. located in St. ▇▇▇▇▇▇▇▇▇ County, Oregon (the "Mortgage Modification"), (y) secretary's or officer's certificates and resolutions with respect to Holdings and each of its Subsidiaries with respect to the organizational documents of each such Person and necessary corporate approval by each such Person to enter into this Amendment, and (z) legal opinions from outside counsel to Holdings and its Subsidiaries (including Nevada local counsel with respect to Borrower) with respect to such matters pertaining to this Amendment as are reasonably determined to be applicable by Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (MARRIOTT VACATIONS WORLDWIDE Corp)
Conditions to Effectiveness of Amendment. The effectiveness Anything contained in this Amendment to the contrary notwithstanding, the terms and provisions of this Amendment is subject to shall only become effective upon the satisfaction of the following additional conditions precedent:
(a) Agent Congress shall have received a copy an executed original or executed original counterparts (as the case may be) of this Amendment (including together with the Consent and Reaffirmation attached hereto), executed by Borrowerfollowing, each Loan Party, Required Lenders of which shall be in form and each Lender holding any outstanding Term B Loanssubstance satisfactory to Congress:
(i) the LCI Fourth Restated Note;
(ii) certified resolutions of the Board of Directors of LCI duly authorizing the execution and delivery of this Amendment and the instruments and transactions hereunder; and
(iii) an Amendment between LPC and Congress with respect to the LPC Financing Agreements and the documents and instruments required thereunder and the satisfaction of all conditions precedent to the effectiveness thereof (the "March 1997 LPC Amendment").
(b) Arrangements satisfactory to Congress shall be made by LPC such that the proceeds of the March 1997 Additional LPC Term Loan (as defined in the March 1997 LPC Amendment) shall be used as required therein, and that, contemporaneously therewith:
(i) CIT shall release all of its liens and security interests in the assets and properties of LPC which constitute "CIT Collateral" pursuant to the Subordination Agreement between CIT and Congress, as amended;
(ii) CIT and Congress shall enter into an agreement, in form and substance satisfactory to Congress, terminating or amending the Subordination Agreement dated as of January 17, 1996 between CIT and Congress, as amended, to provide for, among other things, the release referred to in clause (i) of this paragraph 12(b); and
(iii) LPC shall have delivered to Congress a payoff letter from Chase, setting forth the amount of the Rochester IRB Balance as of the date hereof, and shall have authorized Congress to disburse a portion of the March 1997 Additional LPC Term Loan directly to Chase in payment thereof.
(c) All representations and warranties contained herein, in the Accounts Agreement and in the other Financing Agreements shall be true and correct in all material respects; and
(d) No Default or Event of Default shall have occurred and be continuing as of the date of this Amendment;
(c) On the date hereof, Borrower no event shall have made (and Agent shall have received in immediately available funds from Borrower) a voluntary prepayment occurred or condition be existing which, with notice or passage of the Term B Loans in time or both, would constitute an amount equal to $6,000,000, which $6,000,000 voluntary prepayment Event of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(d) On the date hereof, Agent shall have received $1,500,000 in immediately available funds from the Cash Reserve Account, which the parties hereto agree shall be applied as a voluntary prepayment of the Term B Loans (such that, taken together with the prepayment described in clause (c) immediately above, the Term B Loans shall be paid down by an aggregate amount equal to $7,500,000 on the date hereof), which $1,500,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(e) Agent shall have received the Amendment Fee (as defined below) for the benefit of the applicable Lenders, and Borrower shall have paid all other fees and expenses (including fees and expenses of counsel to the extent invoiced) of Agent due and payable as of the date hereof in connection with this Amendment, the Credit Agreement and the other Loan Documents; and
(f) Agent shall have received the following documents in form and substance satisfactory to Agent: (x) unless otherwise deemed to be a post-closing obligation by Agent, an amendment to the Mortgage in favor of Agent with respect to the real property owned by Performant Recovery, Inc. located in St. ▇▇▇▇▇▇▇▇▇ County, Oregon (the "Mortgage Modification"), (y) secretary's or officer's certificates and resolutions with respect to Holdings and each of its Subsidiaries with respect to the organizational documents of each such Person and necessary corporate approval by each such Person to enter into this Amendment, and (z) legal opinions from outside counsel to Holdings and its Subsidiaries (including Nevada local counsel with respect to Borrower) with respect to such matters pertaining to this Amendment as are reasonably determined to be applicable by AgentDefault.
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Conditions to Effectiveness of Amendment. The effectiveness of this This Amendment is subject to satisfaction shall become effective on the date (such date, if any, the “Fifth Amendment Effective Date”) on which each of the following conditions precedentset forth below has been satisfied:
(a) The Administrative Agent shall have received a copy duly executed counterparts of this Amendment (including from the Consent and Reaffirmation attached hereto), executed by Borrower, each Loan Party, the Guarantor Subsidiaries and the Consenting Lenders constituting the Required Lenders and each Lender holding any outstanding Term B Loans;Lenders.
(b) The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, a certificate of an officer of each Credit Party certifying that attached thereto is (i) a true, correct and complete copy of resolutions duly adopted by the board of directors (or other governing body) of such Credit Party authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Amendment, (ii) an incumbency of the officers or authorized representatives of such Credit Party executing this Amendment and the other Credit Documents and (iii) a good standing certificate from the applicable Governmental Authority of the jurisdiction of incorporation, organization or formation of such Credit Party.
(c) No Default or Event of Default shall have occurred and be continuing as of the date of this Amendment;
(c) On the date hereof, Borrower shall have made (and Agent shall have received in exist on such Fifth Amendment Effective Date immediately available funds from Borrower) a voluntary prepayment of the Term B Loans in an amount equal prior to $6,000,000, which $6,000,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (or after giving effect to this Amendment) in the inverse order of maturity;.
(d) On the date hereof, Agent shall have received $1,500,000 in immediately available funds from the Cash Reserve Account, which the parties hereto agree shall be applied as a voluntary prepayment of the Term B Loans (such that, taken together with the prepayment described in clause (c) immediately above, the Term B Loans shall be paid down by an aggregate amount equal to $7,500,000 on the date hereof), which $1,500,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(e) The Administrative Agent shall have received the Fifth Amendment Fee in full and cash.
(as defined belowe) The representations and warranties in the Credit Documents will be true and correct in all material respects (except for the benefit of the applicable Lendersrepresentations and warranties that are already qualified by materiality, which representations and warranties will be true and correct in all respects) immediately prior to, and Borrower shall immediately after giving effect to, this Amendment on the Fifth Amendment Effective Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties will have paid been true and correct in all other fees material respects (except for those representations and warranties that are conditioned by materiality, which will have been true and correct in all respects) on and as of such earlier date.
(f) All costs and, to the extent invoiced prior to the Fifth Amendment Effective Date, expenses (including reasonable, documented, out-of-pocket legal fees and expenses of counsel consultants and other advisors) and other compensation payable to the extent invoiced) of Administrative Agent due and payable as of the date hereof in connection with this Amendment, the Credit Agreement and the other Loan Documents; and
(f) Agent shall have received the following documents in form and substance satisfactory to Agent: (x) unless otherwise deemed to be a post-closing obligation by Agent, an amendment to the Mortgage in favor of Agent with respect to the real property owned by Performant Recovery, Inc. located in St. ▇▇▇▇▇▇▇▇▇ CountyFargo Securities, Oregon (the "Mortgage Modification"), (y) secretary's or officer's certificates and resolutions with respect to Holdings and each of its Subsidiaries with respect LLC will have been paid to the organizational documents of each such Person and necessary corporate approval by each such Person to enter into this Amendment, and (z) legal opinions from outside counsel to Holdings and its Subsidiaries (including Nevada local counsel with respect to Borrower) with respect to such matters pertaining to this Amendment as are reasonably determined to be applicable by Agentextent then due.
Appears in 1 contract
Conditions to Effectiveness of Amendment. The effectiveness of this Amendment is subject to the amendments set forth in Section 2 hereof shall occur on the date of the satisfaction of the following conditions precedent:precedent (such date, the “Eleventh Amendment Effective Date”); provided that the Required Lenders (excluding (i) Total Revolving Credit Outstandings for the purposes of paragraph (a) of such definition and (ii) Required Lenders under paragraph (c) of such definition) shall not have objected to this Amendment within five (5) Business Days after the Administrative Agent has posted this Amendment to all Lenders.
(a) the Borrower Representative, each Revolving Credit Lender and the Administrative Agent shall have executed and delivered counterparts of this Amendment to the Administrative Agent;
(b) the Administrative Agent and Collateral Agent shall have received the Collateral Documents and other documentation identified on Schedule A-1 hereto, in each case in form and substance reasonably acceptable to the Administrative Agent;
(c) each of the representations and warranties contained in Section 4 of this Amendment 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 Eleventh Amendment Effective Date;
(d) at the time of and immediately after giving effect to this Amendment and the transactions occurring on the Eleventh Amendment Effective Date, no Default or Event of Default exists;
(e) the Administrative Agent shall have received a copy certificate dated the Eleventh Amendment Effective Date and signed by a Responsible Officer of this Amendment (including the Consent Borrower Representative, confirming compliance with the conditions set forth in Sections 3(c) and Reaffirmation attached hereto), executed by Borrower, each Loan Party, Required Lenders and each Lender holding any outstanding Term B Loans3(d) hereof;
(bf) No Default or Event of Default the Administrative Agent and Collateral Agent shall have occurred received, on behalf of itself and the Lenders on the Eleventh Amendment Effective Date, a customary written opinion of local counsel as specified in Schedule A-2 hereto, in each case (i) dated the Eleventh Amendment Effective Date, (ii) addressed to the Administrative Agent and the Lenders and (iii) in form and substance reasonably satisfactory to the Administrative Agent covering such matters relating to this Amendment and the other Loan Documents as the Administrative Agent shall reasonably request; provided that counsel to the Administrative Agent shall provide such opinions to the extent customary in any applicable jurisdiction to be continuing as of the date of this Amendmentmutually agreed;
(cg) On the date hereof, Borrower shall have made (and Administrative Agent shall have received in immediately available funds from Borrower(i) a voluntary prepayment certificate of each Loan Party that is required to deliver the Collateral Documents and other documentation identified on Schedule A-1 hereto pursuant to paragraph (a) above, dated the Eleventh Amendment Effective Date and executed by a Responsible Officer of such Loan Party, which shall (A) certify that attached thereto is a true and complete copy of the Term B Loans in an amount equal to $6,000,000resolutions or written consents of its board of directors, which $6,000,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans members or other governing body (after giving effect to this Amendment) in the inverse order of maturity;
(d) On the date hereof, Agent shall have received $1,500,000 in immediately available funds from the Cash Reserve Account, which the parties hereto agree shall be applied as a voluntary prepayment of the Term B Loans (such that, taken together with the prepayment described in clause (c) immediately above, the Term B Loans shall be paid down by an aggregate amount equal to $7,500,000 on the date hereof), which $1,500,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(e) Agent shall have received the Amendment Fee (as defined below) for the benefit of the applicable Lenders, and Borrower shall have paid all other fees and expenses (including fees and expenses of counsel to the extent invoicedapplicable) authorizing the execution, delivery and performance of the Collateral Documents and other documentation to which it is a party, and that such resolutions or written consents have not been modified, rescinded or amended and are in full force and effect, (B) identify by name and title and bear the signatures of the Responsible Officer or authorized signatory of such Loan Party authorized to sign the Collateral Documents and other documentation to which it is a party and (C) certify that attached thereto is a true and complete copy of the certificate or articles of incorporation or organization (or memorandum of association or other equivalent thereof) of Agent due each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and payable a true and correct copy of its by- laws or operating, management, partnership or similar agreement (to the extent applicable) and that such documents or agreements have not been amended since the date of the last amendment thereto shown on the certificate of good standing referred to below (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date), (ii) a certificate of good standing (or subsistence) with respect to each Loan Party from the date hereof Secretary of State (or similar official) of the state of such Loan Party’s organization (to the extent relevant and available in the jurisdiction of organization of such Loan Party), and (iii) in relation to each Loan Party incorporated or established in Italy, (A) a copy of the constitutional documents of such Loan Party, (B) a copy of a resolution of the board of directors or of the shareholder’s meeting of such Loan Party (1) approving the terms of, and the transactions contemplated by, the the Collateral Documents and other documentation to which it is a party and resolving that it execute, deliver and perform the Collateral Documents and other documentation to which it is a party, (2) authorizing a specified person or persons to execute the the Collateral Documents and other documentation to which it is a party on its behalf, (3) authorizing a specified person or persons, on its behalf, to sign and/or dispatch all documents and notices to be signed and/or dispatched by it under or in connection with this Amendmentthe the Collateral Documents and other documentation to which it is a party; and (4) authorizing the Borrower Representative to act as its agent in connection with the the Collateral Documents and other documentation to which it is a party, (C) a specimen of the Credit Agreement signature of each person authorized by the resolution referred to in the previous paragraph (B) in relation to the the Collateral Documents and other documentation to which it is a party, (D) an up-to-date electronic certified true and complete certificate of good standing (certificato di iscrizione e vigenza), issued by the other relevant Companies Register (Registro delle Imprese) no earlier than three Business Days prior to the Amendment Effective Date confirming that no insolvency procedures have been started in relation to each relevant Loan DocumentsParty incorporated or established in Italy, and (E) a certificate of an authorized signatory of such Loan Party certifying that each copy document relating to it is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the Eleventh Amendment Effective Date; and
(fh) all fees and expenses agreed to by the Borrowers or the Borrower Representative that are due and payable to the Administrative Agent shall have received and the following documents in form and substance satisfactory to Agent: (x) unless otherwise deemed to be a post-closing obligation by Collateral Agent, an amendment for which invoices have been presented to the Mortgage in favor of Agent with respect Parent at least three Business Days prior to the real property owned by Performant RecoveryEleventh Amendment Effective Date, Inc. located in St. ▇▇▇▇▇▇▇▇▇ County, Oregon (on or before the "Mortgage Modification"), (y) secretary's or officer's certificates and resolutions with respect to Holdings and each of its Subsidiaries with respect to the organizational documents of each such Person and necessary corporate approval by each such Person to enter into this Amendment, and (z) legal opinions from outside counsel to Holdings and its Subsidiaries Eleventh Amendment Effective Date (including Nevada local counsel with respect to Borrower) with respect to such matters pertaining to this Amendment as are reasonably determined to be applicable by Agentreasonable and documented out-of-pocket fees, expenses and disbursements of legal counsel).
Appears in 1 contract
Sources: Credit Agreement (Orion S.A.)
Conditions to Effectiveness of Amendment. The effectiveness of this Amendment is subject solely to the satisfaction or waiver of each of the following conditions precedent:(the date on which such conditions are satisfied or waived, the “Amendment No. 9 Effective Date”):
(a) The Administrative Agent shall have received (i) from the Required Revolving Credit Lenders, (ii) from each Letter of Credit Issuer directly and adversely affected by this Amendment and (iii) from the Borrowers, either (x) a copy counterpart of this Amendment signed on behalf of such party or (including y) written evidence satisfactory to the Consent and Reaffirmation attached hereto), executed by Borrower, each Loan Party, Required Lenders and each Lender holding any outstanding Term B Loans;Administrative Agent (which may include telecopy or other electronic transmission of a signed signature page of this Amendment) that such party has signed a counterpart of this Amendment; and
(b) No Default or Event of Default shall have occurred and be continuing as of the date of this Amendment;
(c) On the date hereof, Borrower shall have made (and Agent shall have received in immediately available funds from Borrower) a voluntary prepayment of the Term B Loans in an amount equal to $6,000,000, which $6,000,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(d) On the date hereof, Agent shall have received $1,500,000 in immediately available funds from the Cash Reserve Account, which the parties hereto agree shall be applied as a voluntary prepayment of the Term B Loans (such that, taken together with the prepayment described in clause (c) immediately above, the Term B Loans shall be paid down by an aggregate amount equal to $7,500,000 on the date hereof), which $1,500,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(e) Agent shall have received the Amendment Fee (as defined below) for the benefit of the applicable Lenders, and Borrower The Borrowers shall have paid the Administrative Agent all other fees and expenses (including fees reasonable costs and expenses of counsel the Administrative Agent for which invoices have been presented prior to the extent invoiced) of Agent due and payable as of the date hereof in connection with this AmendmentAmendment No. 9 Effective Date (including, without limitation, the Credit Agreement reasonable and the other Loan Documents; and
(f) Agent shall have received the following documents in form documented fees and substance satisfactory to Agent: (x) unless otherwise deemed to be a postout-closing obligation by Agent, an amendment to the Mortgage in favor of-pocket expenses of Agent with respect to the real property owned by Performant Recovery, Inc. located in St. ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ CountyLLP, Oregon (as counsel for the "Mortgage Modification"), (y) secretary's or officer's certificates and resolutions Administrative Agent with respect thereto). Each Revolving Credit Lender and Letter of Credit Issuer party hereto by delivering its signature page to Holdings this Amendment, shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to such Revolving Credit Lender or Letter of Credit Issuer. The Administrative Agent shall notify the Lenders of the Amendment No. 9 Effective Date upon the occurrence thereof, and such notice and the effectiveness of this Amendment and the Amended Credit Agreement shall be conclusive and binding upon all of the Lenders and all of the other parties to the Credit Documents and each of its Subsidiaries with respect their successors and assigns; provided that, failure to give any such notice shall not affect the organizational documents effectiveness, validity or enforceability of each such Person and necessary corporate approval by each such Person to enter into this Amendment, and (z) legal opinions from outside counsel to Holdings and its Subsidiaries (including Nevada local counsel with respect to Borrower) with respect to such matters pertaining to this Amendment as are reasonably determined to be applicable by Agentor the Amended Credit Agreement. The parties hereto hereby agree that notwithstanding any other provision hereof, the Amendment No. 9 Effective Date is August 15, 2023.
Appears in 1 contract
Sources: Credit Agreement (GoDaddy Inc.)
Conditions to Effectiveness of Amendment. The effectiveness This Amendment shall become effective as of this Amendment is subject to the date first written above upon the satisfaction of each of the following conditions precedent:
(a) Each party hereto shall have executed and delivered this Amendment to Agent;
(b) Agent shall have received a copy fully executed copy, in form and substance reasonably satisfactory to Agent, of a conforming amendment to the Revolving Loan Agreement;
(c) Agent shall have received a fully executed copy, in form and substance satisfactory to Agent, of that certain First Amendment to Fee Letter between Agent and Borrower;
(d) Agent shall have received a fully executed copy, in form and substance satisfactory to Agent, of that certain Consent and Amendment No. 1 to Intercreditor Agreement by and between Agent and the Revolving Loan Agent;
(e) Agent shall have received evidence that ▇▇▇▇▇▇▇ Advisory Group LLC has received from Borrower a refundable retainer in the amount of $75,000;
(f) Agent shall have received, in form and substance reasonably satisfactory to Agent, copies of resolutions of the board of directors (or other equivalent governing body or member) of Borrower authorizing the execution, delivery and performance of this Amendment (including and the Consent and Reaffirmation attached hereto), executed by Borrower, each Loan Party, Required Lenders and each Lender holding any outstanding Term B LoansFirst Amendment to Fee Letter;
(bg) All proceedings taken in connection with the transactions contemplated by this Amendment and all documents, instruments and other legal matters incident thereto shall be reasonably satisfactory to Agent and its legal counsel;
(h) Agent shall have received payment of all fees payable to Agent and Lenders pursuant to the terms of the Fee Letter, and all other fees, charges and disbursements of Agent and its counsel required to be paid pursuant to the Loan Agreement in connection with the preparation, execution and delivery of this Amendment and all other instruments or documents provided for herein or delivered or to be delivered hereunder or in connection herewith that have been invoiced on or before the date hereof; and
(i) No Default or Event of Default shall have occurred and be continuing as of the date of this Amendment;
(c) On the date hereof, Borrower shall have made (and Agent shall have received in immediately available funds from Borrower) a voluntary prepayment of the Term B Loans in an amount equal to $6,000,000, which $6,000,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(d) On the date hereof, Agent shall have received $1,500,000 in immediately available funds from the Cash Reserve Account, which the parties hereto agree shall be applied as a voluntary prepayment of the Term B Loans (such that, taken together with the prepayment described in clause (c) immediately above, the Term B Loans shall be paid down by an aggregate amount equal to $7,500,000 on the date hereof), which $1,500,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(e) Agent shall have received the Amendment Fee (as defined below) for the benefit of the applicable Lenders, and Borrower shall have paid all other fees and expenses (including fees and expenses of counsel to the extent invoiced) of Agent due and payable as of the date hereof in connection with this Amendment, the Credit Agreement and the other Loan Documents; and
(f) Agent shall have received the following documents in form and substance satisfactory to Agent: (x) unless otherwise deemed to be a post-closing obligation by Agent, an amendment to the Mortgage in favor of Agent with respect to the real property owned by Performant Recovery, Inc. located in St. ▇▇▇▇▇▇▇▇▇ County, Oregon (the "Mortgage Modification"), (y) secretary's or officer's certificates and resolutions with respect to Holdings and each of its Subsidiaries with respect to the organizational documents of each such Person and necessary corporate approval by each such Person to enter into this Amendment, and (z) legal opinions from outside counsel to Holdings and its Subsidiaries (including Nevada local counsel with respect to Borrower) with respect to such matters pertaining to this Amendment as are reasonably determined to be applicable by Agentcontinuing.
Appears in 1 contract
Conditions to Effectiveness of Amendment. The effectiveness of this This Amendment is subject to satisfaction of shall become effective on the date on which the following conditions precedent:precedent have been satisfied or waived (the “Effective Date”):
(a) The Administrative Agent shall have received a copy counterpart of this Amendment (including the Consent and Reaffirmation attached hereto)Amendment, executed and delivered by Borrower, a duly authorized officer of each Loan Party, of (i) the Borrowers and (ii) the Required Lenders and each Lender holding any outstanding Term B Loans;Lenders.
(b) No Default or Event of Default The Administrative Agent shall have occurred and be continuing received payment of all fees, as of the date of this Amendment;
(c) On well as expenses for which invoices have been presented on or before the date hereof, Borrower shall have made (and Agent shall have received in immediately available funds from Borrower) a voluntary prepayment of the Term B Loans in an amount equal which are required to $6,000,000, which $6,000,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(d) On the date hereof, Agent shall have received $1,500,000 in immediately available funds from the Cash Reserve Account, which the parties hereto agree shall be applied as a voluntary prepayment of the Term B Loans (such that, taken together with the prepayment described in clause (c) immediately above, the Term B Loans shall be paid down by an aggregate amount equal to $7,500,000 on the date hereof), which $1,500,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(e) Agent shall have received the Amendment Fee (as defined below) for the benefit of the applicable Lenders, and Borrower shall have paid all other fees and expenses (including fees and expenses of counsel to the extent invoiced) of Agent due and payable as of the date hereof in connection with this Amendment, the Credit Agreement and the other Loan Documents; and.
(fc) Agent shall have received the following documents in form and substance satisfactory to Agent: (x) unless otherwise deemed to be a post-closing obligation by Agent, an amendment The conditions precedent to the Mortgage in favor of Agent with respect amendment dated the date hereof to the real property owned by Performant RecoveryBorrowers’ $1.0 Billion Competitive Advance and Revolving Credit Facility Agreement (the “$1.0 Billion Credit Agreement”), dated as of December 19, 2006, among Weyerhaeuser, WRECO, JPMorgan Chase Bank and Citibank, as initial fronting banks, JPMorgan Chase Bank and Citibank, as swing line banks, JPMorgan Chase Bank, as administrative agent, Citibank, as syndication agent, Bank of America, N.A., Deutsche Bank Securities Inc. located in St. and The Bank of Tokyo-Mitsubishi UFJ, Ltd., as documentation agents, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CountyBank, Oregon (the "Mortgage Modification"), (y) secretary's or officer's certificates and resolutions with respect to Holdings and each of its Subsidiaries with respect to the organizational documents of each such Person and necessary corporate approval by each such Person to enter into this Amendmentas co-documentation agent, and the lenders named therein, shall have been satisfied (z) legal opinions from outside counsel to Holdings and its Subsidiaries (including Nevada local counsel with respect to Borrower) with respect to such matters pertaining other than the condition precedent that the conditions precedent to this Amendment shall have been satisfied). Once effective, such amendment will (i) reduce the amount of loans available to WRECO as are reasonably determined a borrower under the $1.0 Billion Credit Agreement from $400,000,000 to $200,000,000, (ii) modify the net worth covenant contained in the $1.0 Billion Credit Agreement in the same manner as set forth in this Amendment and (iii) amend the facility fees and applicable margin under the $1.0 Billion Credit Agreement in the same manner as set forth in this Amendment.
(d) No Loans shall be applicable by Agentoutstanding to WRECO as a Borrower under the Credit Agreement.
Appears in 1 contract
Sources: Competitive Advance and Revolving Credit Facility Agreement (Weyerhaeuser Co)
Conditions to Effectiveness of Amendment. The effectiveness of this This Amendment is subject to satisfaction of shall become effective on the date on which the following conditions precedent:precedent have been satisfied or waived (the “Third Amendment Effective Date”):
(a) The Administrative Agent shall have received a copy counterpart of this Amendment (including the Consent and Reaffirmation attached hereto)Amendment, executed and delivered by a duly authorized officer of each of (A) MWVC, (B) the Borrower, each Loan Party, (C) Lenders constituting the Required Lenders and each Lender holding any outstanding Term B Loans;(D) the Administrative Agent.
(b) After giving effect to this Amendment, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects (and in all respects if qualified by materiality) on and as of the Third Amendment Effective Date as if made on and as of the Third Amendment Effective Date (or to the extent such representations and warranties expressly relate to an earlier date, as of such earlier date).
(c) No Default or Event of Default shall have occurred and be continuing as on the Third Amendment Effective Date or after giving effect to the amendments contemplated herein and any extensions of credit requested to be made on the date of this Amendment;Third Amendment Effective Date.
(cd) On All governmental and third party approvals necessary in connection with the date hereof, Borrower transactions contemplated hereby and by the Credit Agreement shall have made been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or, to the Borrower’s knowledge, threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the financing contemplated hereby.
(e) The Lenders and the Administrative Agent shall have received in immediately available funds from Borrower) a voluntary prepayment of the Term B Loans in an amount equal all fees required to $6,000,000be paid, and all expenses for which $6,000,000 voluntary prepayment of the Term B Loans shall be applied invoices have been presented to the scheduled installments of Borrower on or before the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(d) On the date hereof, Agent shall have received $1,500,000 in immediately available funds from the Cash Reserve Account, which the parties hereto agree shall be applied as a voluntary prepayment of the Term B Loans (such that, taken together with the prepayment described in clause (c) immediately above, the Term B Loans shall be paid down by an aggregate amount equal to $7,500,000 on the date hereof), which $1,500,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(e) Agent shall have received the Third Amendment Fee (as defined below) for the benefit of the applicable Lenders, and Borrower shall have paid all other fees and expenses (including fees and expenses of counsel to the extent invoiced) of Agent due and payable as of the date hereof in connection with this Amendment, the Credit Agreement and the other Loan Documents; andEffective Date.
(f) The Administrative Agent and the other Lenders shall have received the following documents in form and substance satisfactory to Agent: (x) unless otherwise deemed to be a post-closing obligation by Agentreceived, an amendment at least 5 days prior to the Mortgage in favor Third Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, previously requested of Agent with respect to the real property owned Borrower by Performant Recovery, Inc. located in St. ▇▇▇▇▇▇▇▇▇ County, Oregon (the "Mortgage Modification"), (y) secretary's or officer's certificates and resolutions with respect to Holdings and each of its Subsidiaries with respect to the organizational documents of each such Person and necessary corporate approval by each such Person to enter into this Amendment, and (z) legal opinions from outside counsel to Holdings and its Subsidiaries (including Nevada local counsel with respect to Borrower) with respect to such matters pertaining to this Amendment as are reasonably determined to be applicable by Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (MARRIOTT VACATIONS WORLDWIDE Corp)
Conditions to Effectiveness of Amendment. The effectiveness of this Amendment is and the obligations of each Interim Revolving Credit Lender to provide the Interim Revolving Credit Commitments hereunder are subject to the satisfaction (or waiver by each Interim Revolving Credit Lender in accordance herewith) of each of the following conditions precedent:(the date on which such conditions shall have been so satisfied or waived, the “Interim Facility Closing Date”):
(a) The Administrative Agent shall have received a copy counterpart of this Amendment (including the Consent and Reaffirmation attached hereto)Amendment, executed and delivered by a duly authorized officer of the Borrower, each Loan PartyHoldings, Required the Interim Revolving Credit Lenders and each Lender holding any outstanding Term B Loans;the Administrative Agent.
(b) No Default or Event of Default shall have occurred exist on the Interim Facility Closing Date, and at the time that the Interim Revolving Credit Facility becomes effective (and immediately after giving effect thereto), no Default or Event of Default shall exist.
(c) The Borrower shall be continuing in compliance with the covenant set forth in Section 7.11 of the Credit Agreement determined on a Pro Forma Basis as of the date of this Amendment;the Interim Revolving Credit Facility and the last day of the most recent Test Period.
(cd) On The First Lien Leverage Ratio, determined on a Pro Forma Basis as of the Interim Facility Closing Date, shall not to exceed 3.75:1.00.
(e) Both before and after giving effect to the transactions contemplated hereby, the conditions set forth in Section 4.02 of the Credit Agreement shall be satisfied.
(f) The Administrative Agent shall have received all fees required to be paid pursuant to the Fee Letter dated as of the date hereof, among Holdings, the Borrower and JPMorgan Chase Bank, N.A. and ▇.▇. ▇▇▇▇▇▇ Securities LLC (the “Fee Letter”), and all other amounts due and payable on or prior to the Interim Facility Closing Date, including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party under any Loan Document, shall have been paid, on or prior to effectiveness.
(g) Each of the representations and warranties made or deemed to be made in this Amendment shall be true and correct in all material respects; 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 “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(and h) The Administrative Agent shall have received in immediately available funds from Borroweran executed legal opinion of (i) a voluntary prepayment of the Term B Loans in an amount equal to $6,000,000, which $6,000,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(d) On the date hereof, Agent shall have received $1,500,000 in immediately available funds from the Cash Reserve Account, which the parties hereto agree shall be applied as a voluntary prepayment of the Term B Loans (such that, taken together with the prepayment described in clause (c) immediately above, the Term B Loans shall be paid down by an aggregate amount equal to $7,500,000 on the date hereof), which $1,500,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(e) Agent shall have received the Amendment Fee (as defined below) for the benefit of the applicable Lenders, and Borrower shall have paid all other fees and expenses (including fees and expenses of counsel to the extent invoiced) of Agent due and payable as of the date hereof in connection with this Amendment, the Credit Agreement and the other Loan Documents; and
(f) Agent shall have received the following documents in form and substance satisfactory to Agent: (x) unless otherwise deemed to be a post-closing obligation by Agent, an amendment to the Mortgage in favor of Agent with respect to the real property owned by Performant Recovery, Inc. located in St. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ CountyLLP, Oregon counsel to the Loan Parties, and (ii) London & ▇▇▇▇▇▇, P.C., Tennessee counsel to the "Mortgage Modification")Borrower, in each case dated as of the Interim Facility Closing Date and covering such matters as the Administrative Agent shall reasonably request.
(i) The Administrative Agent shall have received (x) a certificate of good standing with respect to each of the Borrower and Holdings and (y) secretary's a closing certificate executed by a Responsible Officer of each of the Borrower and Holdings dated the Interim Facility Closing Date, substantially in the form of the closing certificate delivered in connection with the Credit Agreement certifying as to the incumbency and specimen signature of each officer executing this Amendment or officer's certificates and resolutions with respect to any other document delivered in connection herewith on behalf of the Borrower or Holdings and attaching (A) a true and complete copy of the certificate of incorporation or formation (or equivalent thereof), as applicable, of each of the Borrower and Holdings, including all amendments thereto, as in effect on the Interim Facility Closing Date, certified as of a recent date by the Secretary of State of the state of its Subsidiaries with respect organization, to the organizational documents extent possible, that has not been amended since the date of each the last amendment thereto shown on the certificate of good standing furnished pursuant to clause (x) above; provided that, in lieu of the delivery requirement in this clause (A), if there has been no change to, and no action has been taken to amend, the certificate of incorporation or formation (or equivalent thereof), as applicable, of the Borrower or Holdings, the Administrative Agent shall accept a representation from the Borrower or Holdings as to such Person fact, (B) a true and necessary corporate approval by each complete copy of the by-laws or limited liability company agreement (or equivalent thereof), as applicable, of the Borrower or Holdings as in effect on the Interim Facility Closing Date and at all times since a date prior to the date of the resolutions described in clause (C) below; provided that, in lieu of the delivery requirement in this clause (B), if there has been no change to, and no action has been taken to amend, the by-laws or limited liability company agreement (or equivalent thereof), as applicable, of the Borrower or Holdings, the Administrative Agent shall accept a representation from the Borrower or Holdings as to such Person to enter into this Amendmentfact, and (zC) legal opinions from outside counsel to a true and complete copy of resolutions duly adopted by the Board of Directors and/or similar governing bodies of the Borrower and Holdings approving and its Subsidiaries (including Nevada local counsel with respect to Borrower) with respect to such matters pertaining to authorizing the execution, delivery and performance of this Amendment as and certifying that such resolutions have not been modified, rescinded or amended and are reasonably determined in full force and effect.
(j) The Administrative Agent shall have received (together with a copy to be applicable by Agentthe Lenders) a notice from the Borrower requesting the Interim Revolving Credit Facility and describing the requested amount of revolving credit commitments so requested and the other proposed terms thereof.
Appears in 1 contract
Conditions to Effectiveness of Amendment. The effectiveness of this Amendment is subject to the amendments set forth in Section 2 hereof shall occur on the date of the satisfaction of the following conditions precedent:precedent (such date, the “Eighth Amendment Effective Date”):
(ai) the Borrowers, each other Loan Party and the Administrative Agent shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) each Exchanging Revolving Lender shall have executed and delivered to the Administrative Agent a Revolving Lender Consent, and (iii) each Additional Revolving Lender, the Borrower Representative and the Administrative Agent shall have executed and delivered to the Administrative Agent a Revolving Credit Facility Joinder;
b. the Administrative Agent shall have received the Collateral Documents and other documentation identified on Schedule A-1 hereto, in each case in form and substance reasonably acceptable to the Administrative Agent;
c. each of the representations and warranties contained in Section 6 of this Amendment 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 Eighth Amendment Effective Date;
d. at the time of and immediately after giving effect to this Amendment and the transactions occurring on the Eighth Amendment Effective Date (including the incurrence of the Incremental Revolving Facility), no Default or Event of Default exists;
e. the Administrative Agent shall have received a copy certificate, in form and substance reasonably acceptable to the Administrative Agent, dated the Eighth Amendment Effective Date and signed by a Responsible Officer of this Amendment the Borrower Representative (including i) confirming compliance with the Consent conditions set forth in Sections 5(c) and Reaffirmation attached hereto)5(d) hereof, executed by Borrower, each Loan Party, Required Lenders and each Lender holding any outstanding Term B Loans(ii) certifying that the Incremental Revolving Commitments incurred hereunder are permitted to be incurred pursuant to clause (z) of Section 2.14(a) of the Existing Credit Agreement and setting forth the information and computations (in sufficient detail) required in order to establish pro forma compliance with the requirements of such clause ;
(b) No Default or Event of Default shall have occurred and be continuing as of f. the date of this Amendment;
(c) On the date hereof, Borrower shall have made (and Administrative Agent shall have received in immediately available funds from Borrower) a voluntary prepayment solvency certificate dated as of the Term B Loans Eighth Amendment Effective Date in an amount equal to $6,000,000, which $6,000,000 voluntary prepayment substantially the form of Exhibit H of the Term B Loans shall be applied Amended Credit Agreement from a Financial Officer of the Parent certifying as to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturitymatters set forth therein;
(d) On g. the date hereof, Administrative Agent shall have received $1,500,000 each Revolving Credit Note (to the extent requested at least three Business Days prior to the Eighth Amendment Effective Date);
a. no later than three days in immediately available funds from the Cash Reserve Account, which the parties hereto agree shall be applied as a voluntary prepayment advance of the Term B Loans (such that, taken together with the prepayment described in clause (c) immediately aboveEighth Amendment Effective Date, the Term B Loans shall be paid down by an aggregate amount equal to $7,500,000 on the date hereof), which $1,500,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(e) Administrative Agent shall have received the Amendment Fee (as defined below) for the benefit all documentation and other information reasonably requested by it in writing at least 10 days in advance of the Eighth Amendment Effective Date, which documentation or other information is required by regulatory authorities under applicable Lenders“know your customer” and anti-money laundering rules and regulations, and Borrower shall have paid all other fees and expenses (including fees and expenses of counsel to the extent invoiced) of Agent due and payable as of USA PATRIOT Act;
b. the date hereof in connection with this Amendment, the Credit Agreement and the other Loan Documents; and
(f) Administrative Agent shall have received a certificate dated as of the following documents in form Eighth Amendment Effective Date from a Responsible Officer of the Borrower Representative, certifying compliance with Section 6.13 of the Existing Credit Agreement;
c. the Administrative Agent shall have received, on behalf of itself and substance satisfactory to Agent: the Lenders on the Eighth Amendment Effective Date, a customary written opinion of (xi) unless otherwise deemed to be a post-closing obligation by Agent, an amendment to the Mortgage in favor of Agent with respect to the real property owned by Performant Recovery, Inc. located in St. ▇▇▇▇▇▇▇▇▇ County& ▇▇▇▇▇ LLP, Oregon special counsel for Parent, the Borrowers and each other Loan Party and (ii) local counsel as specified in Schedule A-2 hereto, in each case (A) dated the "Mortgage Modification"Eighth Amendment Effective Date, (B) addressed to the Administrative Agent, the Amendment Arranger and the Lenders and (C) in form and substance reasonably satisfactory to the Administrative Agent and the Amendment Arranger covering such matters relating to this Amendment and the other Loan Documents as the Administrative Agent or the Amendment Arranger shall reasonably request; provided that counsel to the Administrative Agent shall provide such opinions to the extent customary in any applicable jurisdiction to be mutually agreed;
d. the Administrative Agent shall have received (i) a certificate of each Loan Party a party to this Amendment, dated the Eighth Amendment Effective Date and executed by a Responsible Officer of such Loan Party, which shall (A) certify that attached thereto is a true and complete copy of the resolutions or written consents of its board of directors, members or other governing body (to the extent applicable) authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party and, in the case of each Borrower, the Borrowings contemplated hereby, and that such resolutions or written consents have not been modified, rescinded or amended and are in full force and effect, (B) identify by name and title and bear the signatures of the Responsible Officer or authorized signatory of such Loan Party authorized to sign this Amendment and the other Loan Documents to which it is a party and (C) certify that attached thereto is a true and complete copy of the certificate or articles of incorporation or organization (or memorandum of association or other equivalent thereof) of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its by-laws or operating, management, partnership or similar agreement (to the extent applicable) and that such documents or agreements have not been amended since the date of the last amendment thereto shown on the certificate of good standing referred to below (except as otherwise attached to such certificate and certified therein as being the only amendments thereto as of such date), (yii) secretary's a certificate of good standing (or officer's certificates and resolutions with respect to Holdings and each of its Subsidiaries with respect to the organizational documents of each such Person and necessary corporate approval by each such Person to enter into this Amendment, and (z) legal opinions from outside counsel to Holdings and its Subsidiaries (including Nevada local counsel with respect to Borrowersubsistence) with respect to each Loan Party from the Secretary of State (or similar official) of the state of such matters pertaining Loan Party’s organization (to the extent relevant and available in the jurisdiction of organization of such Loan Party), (iii) in relation to each Loan Party incorporated or established in Germany, (A) an up-to-date (aktuell) certified commercial register extract (beglaubigter Handelsregisterauszug), articles of association (Satzung) of each such Loan Party, copies of any by-laws as well as a list of shareholders (Gesellschafterliste) (if applicable), (B) a copy of resolutions signed by all the holders of the issued shares of each such Loan Party and, if applicable, a copy of a resolution of the supervisory board (Aufsichtsrat) and/or advisory board (Beirat) of each such Loan Party, approving the terms of, and the transactions contemplated by this Amendment as are reasonably determined and the other Loan Documents, (C) a specimen of the signature of each person authorized to execute this Amendment, any other Loan Document and other documents and notices to be applicable signed and/or dispatched by each such Loan Party under or in connection with this Amendment and/or the other Loan Documents to which each such Loan Party is a party and (D) a certificate of an authorized signatory of each such Loan Party certifying that each copy document relating to it specified in (A) to (C) above is correct, complete and in full force and effect as at a date no earlier than the Eighth Amendment Effective Date, (iv) in relation to the Luxembourg Loan Party, (A) an up-to-date electronic certified true and complete excerpt of the Luxembourg Companies Register dated no earlier than one Business Day prior to the Amendment Effective Date, and (B) an up-to-date electronic certified true and complete certificate of non-registration of judgments (certificat de non-inscription d’une décision judiciaire), issued by the Luxembourg Companies Register no earlier than one Business Day prior to the Eighth Amendment Effective Date and reflecting the situation no more than two Business Days prior to the Amendment Effective Date certifying that, as of the date of the day immediately preceding such certificate, the Luxembourg Loan Party has not been declared bankrupt (en faillite), and that it has not applied for general settlement or composition with creditors (concordat préventif de faillite), controlled management (gestion contrôlée), or reprieve from payment (sursis de paiement), judicial or voluntary liquidation (liquidation judiciaire ou volontaire), such other proceedings listed at Article 13, items 2 to 12 and Article 14 of the Luxembourg Act dated December 19, 2002 on the Register of Commerce and Companies, on Accounting and on Annual Accounts of the Companies (as amended from time to time) (and which include foreign court decisions as to faillite, concordat or analogous procedures according to European Insolvency Regulation) and (v) in relation to each Loan Party incorporated or established in Italy, (A) a copy of the constitutional documents of such Loan Party, (B) a copy of a resolution of the board of directors of such Loan Party (1) approving the terms of, and the transactions contemplated by, the Loan Documents to which it is a party and resolving that it execute, deliver and perform the Loan Documents to which it is a party, (2) authorizing a specified person or persons to execute the Loan Documents to which it is a party on its behalf, (3) authorizing a specified person or persons, on its behalf, to sign and/or dispatch all documents and notices to be signed and/or dispatched by it under or in connection with the Loan Documents to which it is a party; and (4) authorizing the Borrower Representative to act as its agent in connection with the Loan Documents, (C) a specimen of the signature of each person authorized by the resolution referred to in the previous paragraph (B) in relation to the Loan Documents and related documents, (D) an up-to-date electronic certified true and complete certificate of good standing (certificato di iscrizione e vigenza), issued by the relevant Companies Register (Registro delle Imprese) no earlier than three Business Days prior to the Amendment Effective Date confirming that no insolvency procedures have been started in relation to each relevant Loan Party incorporated or established in Italy, and (E) a certificate of an authorized signatory of such Loan Party certifying that each copy document relating to it is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the Eighth Amendment Effective Date and (vi) in relation to each Loan Party incorporated or established in Poland, (A) a copy of the constitutional documents of such Loan Party, (B) a copy of the shareholder's resolution of such Loan Party (1) approving the terms of, and the transactions contemplated by, the Loan Documents to which it is a party and resolving that it execute, deliver and perform the Loan Documents to which it is a party, (2) authorizing a specified person or persons to execute the Loan Documents to which it is a party on its behalf, (3) authorizing a specified person or persons, on its behalf, to sign and/or dispatch all documents and notices to be signed and/or dispatched by it under or in connection with the Loan Documents to which it is a party; and (4) authorizing the Borrower Representative to act as its agent in connection with the Loan Documents, (C) a specimen of the signature of each person authorized by the resolution referred to in the previous paragraph (B) in relation to the Loan Documents and related documents, (D) an up-to-date electronic print-out from the commercial register (informacja odpowiadająca odpisowi aktualnemu z rejestru przedsiębiorców KRS) no earlier than one Business Day prior to the Amendment Effective Date confirming that no insolvency procedures have been started in relation to the relevant Loan Party, and (E) a certificate of an authorized signatory of such Loan Party certifying that each copy document relating to it is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the Eighth Amendment Effective Date;
a. the Amendment Arranger shall have received all fees and expenses agreed to by the Borrowers or the Borrower Representative that are due and payable to the Amendment Arranger, for which invoices have been presented to the Parent at least three Business Days prior to the Eighth Amendment Effective Date, on or before the Eighth Amendment Effective Date (including reasonable and documented out-of-pocket fees, expenses and disbursements of legal counsel), which amounts may be offset against the proceeds of the Incremental Revolving Loans;
b. the Administrative Agent shall have received:
a. all fees and expenses agreed to by the Borrowers or the Borrower Representative that are due and payable to the Administrative Agent, for which invoices have been presented to the Parent at least three Business Days prior to the Eighth Amendment Effective Date, on or before the Eighth Amendment Effective Date (including reasonable and documented out-of-pocket fees, expenses and disbursements of legal counsel), which amounts may be offset against the proceeds of the Incremental Revolving Loans;
b. for distribution to each Existing Revolving Lender, an amount equal to the sum of (x) the principal of and unpaid interest accrued to the Eighth Amendment Effective Date on the outstanding Revolving Loans of such Existing Revolving Lender and (y) all fees and other amounts owing to or accrued for the account of such Existing Revolving Lender under the Existing Credit Agreement in respect of such Revolving Loans and such Existing Revolving Lender’s Revolving Credit Commitments (including any amounts under Section 3.06 of the Existing Credit Agreement);
c. for distribution to each Exchanging Revolving Lender that shall have delivered (by facsimile or otherwise) an executed signature page to a Revolving Lender Consent, and released such signature page, on or prior to 12:00 p.m. (New York time) on April [•], 2019, a non-refundable special consent fee in an amount equal to 0.45% multiplied by the principal amount of the Revolving Credit Commitments held by such Exchanging Revolving Lender immediately prior to giving effect to the transactions contemplated by this Amendment;
a. for distribution to each Increasing Revolving Lender that shall have delivered (by facsimile or otherwise) an executed signature page to a Revolving Lender Consent, and released such signature page, on or prior to 12:00 p.m. (New York time) on April [•], 2019, a non-refundable special new money fee in an amount equal to 0.75% multiplied by (a) the principal amount of the Incremental Revolving Commitments held by such Increasing Revolving Lender immediately after giving effect to the transactions contemplated by this Amendment minus (b) the principal amount of the Revolving Credit Commitments held by such Increasing Revolving Lender immediately prior to giving effect to the transactions contemplated by this Amendment; and
b. for distribution to each Additional Revolving Lender that shall have delivered (by facsimile or otherwise) an executed signature page to a Revolving Credit Facility Joinder, and released such signature page, on or prior to 12:00 p.m. (New York time) on April [•], 2019, a non-refundable special new money fee in an amount equal to 0.75% multiplied by the principal amount of the Incremental Revolving Commitments held by such Additional Revolving Lender immediately after giving effect to the transactions contemplated by this Amendment.
Appears in 1 contract
Conditions to Effectiveness of Amendment. The effectiveness of the amendments and consents pursuant to this Amendment is shall be subject to the satisfaction of each of the following conditions precedent:
(a) Agent Lender shall have received a copy an executed original or executed original counterparts of this Amendment (including as the Consent and Reaffirmation attached heretocase may be), duly authorized, executed and delivered by Borrower, each Loan Party, Required Lenders and each Lender holding any outstanding Term B Loansthe respective party or parties hereto;
(b) No Default or Event of Default Lender shall have occurred received, in form and be continuing as substance satisfactory to Lender, evidence that the QMP Purchase Agreements and the OMPC-NC Merger Agreements have been duly authorized, executed and delivered by and to the appropriate parties thereto, that the transactions contemplated under the terms and conditions of the date QMP Purchase Agreements have been consummated prior to or contemporaneously with the execution of this Amendment;
(c) On the date hereof, Borrower Lender shall have made (and Agent shall have received in immediately available funds from Borrower) a voluntary prepayment of the Term B Loans in an amount equal to $6,000,000received, which $6,000,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(d) On the date hereof, Agent shall have received $1,500,000 in immediately available funds from the Cash Reserve Account, which the parties hereto agree shall be applied as a voluntary prepayment of the Term B Loans (such that, taken together with the prepayment described in clause (c) immediately above, the Term B Loans shall be paid down by an aggregate amount equal to $7,500,000 on the date hereof), which $1,500,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(e) Agent shall have received the Amendment Fee (as defined below) for the benefit of the applicable Lenders, and Borrower shall have paid all other fees and expenses (including fees and expenses of counsel to the extent invoiced) of Agent due and payable as of the date hereof in connection with this Amendment, the Credit Agreement and the other Loan Documents; and
(f) Agent shall have received the following documents in form and substance satisfactory to Agent: (x) unless otherwise deemed Lender, all releases, terminations and such other documents as Lender may request to be a post-closing obligation evidence and effectuate the termination by AgentBBT of its financing arrangements with ORC, an amendment as assumed by ORC pursuant to the Mortgage QMP Purchase Agreements, and the termination and release by BBT of any interest in and to any assets and properties of QMP constituting any of the QMP Purchased Assets, and of any interest in the assets and properties of ORC, duly authorized, executed and delivered by BBT, including, but not limited to, (i) UCC-3 Termination Statements for all UCC Financing Statements previously filed by it, as secured party, and QMP, as debtor, and (ii) satisfactions and discharges of any mortgages, deeds or trusts or deeds to secured debt by QMP in favor of Agent it covering any of the Real Property located in Chatham County, North Carolina, in form acceptable for recording in the appropriate governmental office located in Chatham County, North Carolina;
(d) Lender shall have received evidence, in form and substance satisfactory to Lender, that the OMPC-NC Merger will be consummated by the close of business on the date hereof.
(e) Lender shall have received, in form and substance satisfactory to Lender, the Second Amended and Restated ORC Term Note, duly authorized, executed and delivered by ORC;
(f) Lender shall have received, in form and substance satisfactory to Lender, each duly authorized, executed and delivered (i) a Deed of Trust and Security Agreement by ORC in favor of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as trustee, for the benefit of Lender with respect to the real property owned by Performant Recovery, Inc. Real Property and related assets of ORC acquired from QMP located in St. Chatham County, North Carolina, (ii) a Mortgage Modification Agreement with respect to the Mortgage and Security Agreement, dated February 2, 1996, by ORC in favor of Lender for filing in Tippecanoe County, Indiana, and (iii) a Mortgage Modification Agreement with respect to the Amended and Restated Mortgage and Security Agreement, dated February 2, 1996, by ORC in favor of Lender for filing in Madison County, New York and Oswego County, New York;
(g) Lender shall have received an environmental Phase I and Phase II site report with respect to ORC's Real Property to be acquired from QMP and located in Chatham County, North Carolina, conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (i) that the past and present operation, use and condition of such Real Property has been in compliance with all material applicable Environmental Laws and (ii) the absence of any material environmental problems;
(h) Lender shall have received, in form and substance satisfactory to Lender, a valid and effective title insurance policy and/or updating endorsements issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage requested by Lender for protection of its interests;
(i) Lender shall have received, in form and substance, satisfactory to Lender, originals of the following, each duly authorized, executed and delivered:
(i) a Supplemental Limited Guarantee by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ with respect to the Obligations of ORC;
(ii) the Reunion Limited Guarantee;
(iii) the Reunion Indemnity Agreement; and
(iv) the Reunion/ORC Letter; and
(v) a Subordinated Promissory Note, dated of even date herewith, by ORC payable to Reunion in the original principal amount of $2,000,000 evidencing the indebtedness consisting of the Reunion November 1996 Subordinated Loan.
(j) Lender shall have received, in form and substance satisfactory to Lender, (i) a letter agreement from Reunion in favor of Lender acknowledging that each of the Reunion November 1996 Subordinated Loan and the Reunion February 1997 Subordinated Loan (when and if made) shall be subordinated in right of payment to the right of Lender to receive the prior indefeasible payment in full of all of the Obligations pursuant to the Subordination Agreement, dated February 2, 1996, between Lender and Reunion, as acknowledged by Borrowers, duly authorized, executed and delivered by Reunion and Borrowers and (ii) a letter agreement from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in favor of Lender acknowledging that the indebtedness consisting of the Supplemental Credit Support Fee Agreement, dated of even date herewith, between ORC and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall be subordinated in right of payment to the right of Lender to receive the prior indefensible payment in full of all of the Obligations pursuant to the Subordination Agreement, dated February 2, 1996, between Lender and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as acknowledged by ORC, duly authorized, executed and delivered by ▇▇▇▇▇▇▇ County▇▇▇▇▇▇▇ and ORC;
(k) Lender shall have received, Oregon (the "Mortgage Modification")in form and substance satisfactory to Lender, (yi) secretary's or officer's certificates and resolutions with respect a favorable opinion of counsel for ORC addressed to Holdings and each of its Subsidiaries Lender with respect to the organizational documents of each such Person and necessary corporate approval transactions contemplated by each such Person to enter into this Amendment, the QMP Purchase Agreements and the OMPC-NC Merger Agreements, (zii) legal opinions from outside a favorable opinion of special North Carolina counsel for ORC addressed to Holdings and its Subsidiaries (including Nevada local counsel Lender with respect to Borrowerthe transactions contemplated by this Amendment, the QMP Purchase Agreements and the OMPC-NC Merger Agreements, and (iii) a favorable opinion of counsel for QMP and ▇▇▇▇ addressed to ORC, upon which Lender is expressly permitted to rely, with respect to the transactions contemplated by the QMP Purchase Agreements;
(l) Lender shall have received, in form and substance satisfactory to Lender, (i) a Collateral Assignment of Acquisition Agreements by ORC in favor of Lender, duly authorized, executed and delivered by ORC providing for the assignment of all of ORC's rights and remedies and claims for damages or other relief under the QMP Purchase Agreements and granting Lender such matters pertaining other rights with respect thereto, as Lender may require, and (ii) the agreement of QMP, ▇▇▇▇ and the Escrow Agent (as defined in the Purchase Agreements) consenting to the Collateral Assignment of Acquisition Agreements by ORC to Lender duly authorized, executed and delivered by QMP, ▇▇▇▇ and the Escrow Agent;
(m) Lender shall have received, in form and substance satisfactory to Lender, evidence that Lender has valid, perfected and first priority security interests in and liens upon the QMP Purchased Assets;
(n) Lender shall have received, in form and substance satisfactory to Lender, updates or amendments to the insurance certificates previously issued by the insurance agent and/or insurance company in favor of Lender certifying to Lender that the QMP Purchased Assets, including the Real Property located in Chatham County, North Carolina, are covered by ORC's existing insurance policies and loss payable and additional insured endorsements in favor of Lender;
(o) Lender shall have received, in form and substance satisfactory to Lender, UCC-3 Termination Statement by Sunbeam with respect to UCC-1 Financing Statements previously filed against QMP and new UCC-1 Financing Statements between ORC, as debtor, and Sunbeam, as secured party, filed with the North Carolina Secretary of State and the Recorder of Deeds of Chatham County, North Carolina;
(p) Lender shall have received evidence that ORC has qualified to do business as a foreign corporation in the State of North Carolina;
(q) Lender shall have received evidence that QMP has filed an amendment to its Certificate of Incorporation changing its name to a name bearing no resemblance to Quality Molded Products, Inc.;
(r) Lender shall have received, in form and substance satisfactory to Lender, all consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests and liens upon the Collateral or to affect the provisions or purposes of this Amendment as are reasonably determined and the other Financing Agreements;
(s) no material adverse change shall have occurred in the QMP Purchased Assets or the business of QMP conducted with the QMP Purchased Assets by QMP since the date of Lender's latest field examination of the QMP Purchased Assets.
(t) all requisite corporate action and proceedings in connection with this Amendment and the documents and instruments to be applicable delivered hereunder shall be in form and substance satisfactory to Lender, and Lender shall have received all information and copies of all documents, including, without limitation, records of requisite corporate action and proceedings which Lender may have reasonably requested in connection therewith, such documents where requested by AgentLender or its counsel to be certified by appropriate corporate officers or governmental authorities;
(u) no Event of Default shall exist or have occurred and no event or condition shall have occurred or exist which with notice or passage of time or both would constitute an Event of Default;
(v) Lender shall have received, in form and substance satisfactory to Lender, an agreement from ▇▇▇▇▇ Limited and Gain Technologies providing for, among other things, the rights of ORC and Lender with respect to intellectual property licensed to ORC by Gain Technologies and/or ▇▇▇▇▇ Limited and Collateral consisting of or affected by such rights; and
(w) Lender shall have received, in form and substance satisfactory to Lender, evidence of the payment by ORC of the QMP Purchase Price (subject to adjustment as provided in the QMP Purchase Agreements) in consideration of the purchase by ORC of the QMP Purchase Assets pursuant to the QMP Purchase Agreements and the payment by ORC of an amount not to exceed $240,000 in payment of the broker's fee payable to First Commercial Group upon closing of the acquisition contemplated by the QMP Purchase Agreements, in each case as in effect on the date hereof.
Appears in 1 contract
Sources: Loan and Security Agreement (Reunion Industries Inc)
Conditions to Effectiveness of Amendment. The effectiveness of this This Amendment is subject to satisfaction shall become effective on the date (such date, if any, the “Third Amendment Effective Date”) on which each of the following conditions precedent:
(a) set forth below has been satisfied: The Administrative Agent shall have received a copy duly executed counterparts of this Amendment (including from the Consent and Reaffirmation attached hereto), executed by Borrower, each the Guarantor Subsidiaries, the Term A-2 Loan Party, Required Lenders and Consenting Lenders constituting the Required Lenders. Delivery of counterparts of Term Loan Notes in favor of each Term A-2 Loan Lender holding any outstanding that has requested a Term B Loans;
Loan Note. The Administrative Agent shall have received each of the following in form and substance reasonably satisfactory to the Administrative Agent: a certificate of an officer of the Borrower certifying that attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (bor other governing body) of each Credit Party authorizing and approving the transactions contemplated hereunder and the execution, delivery and performance of this Amendment; a fully executed and delivered Funding Notice with respect to the Term A-2 Loans to be borrowed on the Third Amendment Effective Date; and opinions of counsel to the Credit Agreement addressed to the Administrative Agent and the Lenders with respect to the Credit Agreement and the Term A-2 Loans and this Amendment. No Default or Event of Default shall have occurred and be continuing as of the date of this Amendment;
(c) On the date hereof, Borrower shall have made (and Agent shall have received in exist on such Third Amendment Effective Date immediately available funds from Borrower) a voluntary prepayment of the Term B Loans in an amount equal prior to $6,000,000, which $6,000,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (or after giving effect to (i) this AmendmentAmendment and (ii) in the inverse order of maturity;
(d) On the date hereof, Agent shall have received $1,500,000 in immediately available funds from the Cash Reserve Account, which the parties hereto agree shall be applied as a voluntary prepayment making of the Term B A-2 Loans on such date. The representations and warranties in the Credit Documents will be true and correct in all material respects (such thatexcept for representations and warranties that are already qualified by materiality, taken together with the prepayment described which representations and warranties will be true and correct in clause (call respects) immediately aboveprior to, and immediately after giving effect to, the Term B Loans shall be paid down by an aggregate amount equal to $7,500,000 on the date hereof), which $1,500,000 voluntary prepayment incurrence of the Term B Loans shall be applied A-2 Loans, on and as of the Third Amendment Effective Date to the scheduled installments same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties will have been true and correct in all material respects (except for those representations and warranties that are conditioned by materiality, which will have been true and correct in all respects) on and as of such earlier date. The Administrative Agent and the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(e) Agent shall A-2 Loan Lenders will have received all documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations including the PATRIOT Act at least three (3) Business Days prior to the Third Amendment Fee (as defined below) for the benefit of the applicable Lenders, and Effective Date. The Borrower shall have paid all other fees and expenses (including fees and expenses of counsel delivered to the extent invoiced) of Agent Administrative Agent, and directly to any Lender requesting the same, a Beneficial Ownership Certification in relation to it. All fees due and payable pursuant to the engagement letter dated as of June 23, 2022 (the date hereof in connection with this Amendment“Engagement Letter”), between the Credit Agreement and the other Loan Documents; and
(f) Agent shall have received the following documents in form and substance satisfactory to Agent: (x) unless otherwise deemed to be a post-closing obligation by AgentBorrower, an amendment to the Mortgage in favor of Agent with respect to the real property owned by Performant Recovery, Inc. located in St. ▇▇▇▇▇▇▇▇▇ CountyFargo Securities, Oregon LLC, JPMorgan Chase Bank, N.A. and Truist Securities, Inc. and the Fee Letter (as defined in the "Mortgage Modification"Engagement Letter), in each case, will have been paid (yor will be paid substantially concurrently with the funding of the Term A-2 Loans). All costs and expenses (including reasonable, documented, out-of-pocket legal fees and expenses of consultants and other advisors) secretary's or officer's certificates and resolutions with respect other compensation payable to Holdings Administrative Agent and each of its Subsidiaries with respect ▇▇▇▇▇ Fargo Securities, LLC will have been paid to the organizational documents extent then due; provided that an invoice of each such Person and necessary corporate approval expenses will have been presented no less than two (2) Business Days prior to the Third Amendment Effective Date (or otherwise approved by each such Person to enter into the Borrower in a funds flow or settlement statement for this Amendment, and (z) legal opinions from outside counsel to Holdings and its Subsidiaries (including Nevada local counsel with respect to Borrower) with respect to such matters pertaining to this Amendment as are reasonably determined to be applicable by Agent).
Appears in 1 contract
Conditions to Effectiveness of Amendment. The effectiveness of this This Amendment is subject to shall become effective on the Effective Date upon satisfaction of the following conditions precedentconditions:
(a) Agent The Administrative Agent, the Loan Administrator, the Majority Lenders signatory hereto and the Incremental Lenders shall have received counterparts of this Amendment executed by each other, the Borrower, the Guarantors, the Administrative Agent, the Loan Administrator, the Majority Lenders and the Incremental Lenders.
(b) The Administrative Agent, the Loan Administrator, the Majority Lenders and the Incremental Lenders shall have received a copy Notice of this Amendment Borrowing (with necessary conforming changes) from the Borrower executed by Responsible Officer of the Borrower and in compliance with the requirements of Sections 2.03 and 2.06 of the Credit Agreement as amended hereby.
(c) The Incremental Lenders shall be satisfied that there shall not occur as a result of the funding of the Incremental Loans on the Funding Date, a default (or any event which with the giving of notice or lapse of time or both would be a default) under any of the Borrower’s or Guarantors’ debt instruments and other material agreements (other than as contemplated by the Senior Notes Forbearance Agreement or the Second Lien Forbearance Agreement). Such determination by the Incremental Lenders shall be binding on the Administrative Agent and the Loan Administrator without further inquiry.
(d) All necessary governmental and third party consents and approvals necessary in connection with the Incremental Loans shall have been obtained and shall remain in effect; and no law or regulation shall be applicable that restrains, prevents or imposes adverse conditions upon the Transactions.
(e) The Administrative Agent for the benefit of the Lenders (including the Consent Incremental Lenders) shall have a valid and Reaffirmation attached hereto), executed by Borrower, each perfected first priority lien on and security interest in any Collateral granted under the Credit Agreement as amended hereby and the Loan Party, Required Lenders and each Lender holding any outstanding Term B Loans;Documents.
(bf) No The Administrative Agent, the Loan Administrator, the Majority Lenders signatory hereto and the Incremental Lenders shall have received the Borrower’s updated 6-week budget (the “Updated Budget”) giving effect to the incurrence of the Incremental Loans on the Funding Date, which will govern the use of the proceeds of the Incremental Loans in accordance with Section 9.01 of the Credit Agreement and which Updated Budget shall be in form and substance satisfactory to the Incremental Lenders.
(g) After giving effect to this Amendment and the funding of the Incremental Loans, no Default or Event of Default shall have occurred and be continuing exist under the Credit Agreement as amended hereby or under any Loan Document as of the date of this Amendment;Effective Date.
(ch) On The representations and warranties contained in the date hereof, Borrower Credit Agreement as amended hereby and the Loan Documents shall have made (be true and Agent shall have received in immediately available funds from Borrower) a voluntary prepayment correct on and as of the Term B Loans Effective Date in an amount equal to $6,000,000, which $6,000,000 voluntary prepayment all material respects as though made as of the Term B Loans Effective Date (except to the extent any such representations and warranties are expressly limited to an earlier date, in which case, such representations and warranties shall continue to be true and correct in all material respects as of such specified earlier date); provided that any representation or warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be applied to the scheduled installments of the Term B Loans true and correct (after giving effect to this Amendmentany qualification therein) in the inverse order of maturity;
(d) On the date hereofall respects on such respective dates, Agent shall have received $1,500,000 in immediately available funds from the Cash Reserve Accountprior to, which the parties hereto agree shall be applied as a voluntary prepayment of the Term B Loans (such that, taken together with the prepayment described in clause (c) immediately above, the Term B Loans shall be paid down by an aggregate amount equal to $7,500,000 on the date hereof), which $1,500,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (and after giving effect to this Amendment) in to, the inverse order funding of maturity;the Incremental Loans being made on the Funding Date.
(ei) Agent The Administrative Agent, the Loan Administrator, the Majority Lenders and the Incremental Lenders shall have received the Amendment Fee (as defined below) for the benefit of the applicable Lendersreceived, and Borrower shall have paid all other fees and expenses (including fees and expenses of counsel to the extent invoiced) of Agent due and payable as of the date hereof in connection with this Amendment, the Credit Agreement and the other Loan Documents; and
(f) Agent shall have received the following documents in form and substance reasonably satisfactory to Agent: (x) unless otherwise deemed to be the Incremental Lenders, a post-closing obligation by Agent, an amendment to the Mortgage in favor legal opinion of Agent with respect to the real property owned by Performant Recovery, Inc. located in St. ▇▇▇▇▇▇▇▇▇ County& ▇▇▇▇▇ LLP, Oregon (the "Mortgage Modification"), (y) secretary's or officer's certificates and resolutions with respect to Holdings and each of its Subsidiaries with respect as counsel to the organizational documents Loan Parties.
(j) If the Loan Administrator has not received written notice from the Borrower, the Majority Lenders, or any Incremental Lender that any of each the foregoing conditions in this Section 6 has not been satisfied prior to the Funding Date, it may assume without further inquiry that such Person and necessary corporate approval by each such Person to enter into this Amendment, and (z) legal opinions from outside counsel to Holdings and its Subsidiaries (including Nevada local counsel with respect to Borrower) with respect to such matters pertaining to this Amendment as are reasonably determined to be applicable by Agentcondition has been satisfied.
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Conditions to Effectiveness of Amendment. The effectiveness of the amendments and consents pursuant to this Amendment is (other than the provisions of Sections 7, 8 and 10 which shall be effective immediately) shall be subject to the satisfaction of each of the following conditions precedent:
(a) Agent Lender shall have received a copy an executed original or executed original counterparts of this Amendment (including as the Consent and Reaffirmation attached heretocase may be), duly authorized, executed and delivered by Borrower, each Loan Party, Required Lenders and each Lender holding any outstanding Term B Loansthe respective party or parties hereto;
(b) No Default or Event of Default Lender shall have occurred received, in form and be continuing as substance satisfactory to Lender, evidence that the DPL Purchase Agreements have been duly authorized, executed and delivered by and to the appropriate parties thereto and that the transactions contemplated under the terms and conditions of the date DPL Purchase Agreements have been consummated prior to or contemporaneously with the execution of this Amendment;
(c) On the date hereof, Borrower Lender shall have made (and Agent shall have received in immediately available funds from Borrower) a voluntary prepayment of the Term B Loans in an amount equal to $6,000,000received, which $6,000,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(d) On the date hereof, Agent shall have received $1,500,000 in immediately available funds from the Cash Reserve Account, which the parties hereto agree shall be applied as a voluntary prepayment of the Term B Loans (such that, taken together with the prepayment described in clause (c) immediately above, the Term B Loans shall be paid down by an aggregate amount equal to $7,500,000 on the date hereof), which $1,500,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(e) Agent shall have received the Amendment Fee (as defined below) for the benefit of the applicable Lenders, and Borrower shall have paid all other fees and expenses (including fees and expenses of counsel to the extent invoiced) of Agent due and payable as of the date hereof in connection with this Amendment, the Credit Agreement and the other Loan Documents; and
(f) Agent shall have received the following documents in form and substance satisfactory to Agent: Lender, evidence that the Reunion DPL Subordinated Note in the original principal amount of $750,000 has been duly authorized, executed and delivered by ORC and that ORC has received from or on behalf of Reunion, cash or other immediately available funds in the aggregate principal amount of $750,000 constituting the proceeds of the loan made by Reunion to ORC evidenced by the Reunion DPL Subordinated Note in the original principal amount of $750,000;
(xd) unless otherwise deemed Lender shall have received, in form and substance satisfactory to be Lender, a post-closing obligation by Agent, an amendment to the Mortgage letter agreement from Reunion in favor of Agent with respect Lender, acknowledging that the indebtedness owed to Reunion by ORC evidenced by the real property owned by Performant Recovery, Inc. located Reunion DPL Subordinated Notes is included in St. ▇▇▇▇▇▇▇▇▇ County, Oregon (the "Mortgage Modification")Junior Debt" as defined under the Subordination Agreement, dated February 2, 1996, between Lender and Reunion, as acknowledged by Borrowers, duly authorized, executed and delivered by Reunion and Borrowers; and
(ye) secretary's no Event of Default shall exist or officer's certificates have occurred and resolutions no event or condition shall have occurred or exist which with respect to Holdings and each notice or passage of its Subsidiaries with respect to the organizational documents time or both would constitute an Event of each such Person and necessary corporate approval by each such Person to enter into this Amendment, and (z) legal opinions from outside counsel to Holdings and its Subsidiaries (including Nevada local counsel with respect to Borrower) with respect to such matters pertaining to this Amendment as are reasonably determined to be applicable by AgentDefault.
Appears in 1 contract
Sources: Loan and Security Agreement (Reunion Industries Inc)
Conditions to Effectiveness of Amendment. The effectiveness This Amendment, including the amendments set forth in Section 2, shall become effective and the provisions set forth in Sections 1 and 2 shall become operative, and each New Incremental Term Loan Lender shall make New Term Loans in the amount of this its respective New Term Loan Commitment, on the date and at the time (the “Amendment is subject to satisfaction No. 2 Effective Time”) at which each of the following conditions precedentare satisfied or waived by each applicable party:
(a) The Administrative Agent shall have received executed signature pages to this Amendment from each Lender party hereto, the Borrower and each other Loan Party.
(b) The Administrative Agent shall have received a copy certificate from an officer or director of this Amendment (including the Consent and Reaffirmation attached hereto), executed by Borrower, each Loan Party, Required Lenders and each Lender holding any outstanding Term B Loans;
(b) No Default or Event of Default Borrower stating that the Revolving Facility Agreement shall have occurred become effective pursuant to and be continuing in accordance with the terms and conditions thereof and Loans (as of defined in the date of this Amendment;Revolving Facility Agreement) shall have been made available to the Borrower.
(c) On the date hereof, Borrower The Incremental Term Lenders party hereto shall have made received all amounts due and payable on or prior to the Amendment No. 2 Effective Time to the extent invoiced at least one Business Day prior to the Amendment No. 2 Effective Time.
(and d) The Administrative Agent shall have received in immediately available funds from Borrower) a voluntary prepayment certificate of the Term B Loans in Secretary or an amount equal to $6,000,000, which $6,000,000 voluntary prepayment Assistant Secretary of the Term B Loans shall be applied Borrower and each Guarantor setting forth (i) resolutions of the its board of directors or other appropriate governing body with respect to the scheduled installments authorization of the Term B Loans Borrower or such Guarantor to execute and deliver the Amendment and to enter into the transactions contemplated hereby, (after ii) the officers of the Borrower or such Guarantor (y) who are authorized to sign this Amendment and (z) who will, until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purposes of signing documents and giving effect notices and other communications in connection with this Amendment and the transactions contemplated hereby, (iii) specimen signatures of such authorized officers, and (iv) the articles or certificate of incorporation and by-laws or other applicable organizational documents of the Borrower and such Guarantor, certified as being true and complete. The Administrative Agent and the Lenders may conclusively rely on such certificate until the Administrative Agent receives notice in writing from the Borrower to this Amendment) in the inverse order of maturity;contrary.
(de) On the date hereof, The Administrative Agent shall have received $1,500,000 in immediately available funds a certificate from an officer or director of the Borrower attaching the same (i) certificates of good standing from the Cash Reserve Account, which the parties hereto agree shall be applied as a voluntary prepayment applicable Secretary of State (or equivalent) of the Term B Loans State of organization of each Loan Party and (such that, taken together with the prepayment described in clause (cii) immediately above, the Term B Loans shall be paid down by an aggregate amount equal to $7,500,000 on the date hereof), which $1,500,000 voluntary prepayment certificate of insurance coverage of the Term B Loans shall be applied Borrower, in each case, as delivered to the scheduled installments of administrative agent under the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(e) Agent shall have received the Amendment Fee (as defined below) for the benefit of the applicable Lenders, and Borrower shall have paid all other fees and expenses (including fees and expenses of counsel to the extent invoiced) of Agent due and payable as of the date hereof in connection with this Amendment, the Credit Agreement and the other Loan Documents; andRevolving Facility Agreement.
(f) Agent The New Incremental Term Lenders shall have received received, on behalf of itself, and the following documents in form and substance satisfactory to Agent: (x) unless otherwise deemed to be a post-closing obligation by AgentNew Incremental Term Lenders, an amendment to the Mortgage in favor opinion of Agent with respect to the real property owned by Performant Recovery, Inc. located in St. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ CountyLLP, Oregon (the "Mortgage Modification"), (y) secretary's or officer's certificates and resolutions with respect to Holdings and each of its Subsidiaries with respect New York counsel to the organizational documents Borrower and the Guarantors.
(g) The Administrative Agent shall have received a certificate from an authorized officer of each such Person and necessary corporate approval by each such Person to enter into this Amendment, and (z) legal opinions from outside counsel to Holdings and its Subsidiaries (including Nevada local counsel the Borrower that the Merger shall have been consummated or will be consummated substantially concurrently with respect to Borrower) with respect to such matters pertaining to this the Amendment as are reasonably determined to be applicable by Agent.No. 2
Appears in 1 contract
Sources: Credit Agreement (Forest Oil Corp)
Conditions to Effectiveness of Amendment. The effectiveness of this Amendment is subject to the amendments set forth in Section 2 hereof shall occur on the date of the satisfaction of the following conditions precedent:precedent (such date, the “Amendment Effective Date”):
(a) (i) the Borrowers, each other Loan Party and the Administrative Agent shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) each Exchanging Revolving Lender shall have executed and delivered to the Administrative Agent a Revolving Lender Consent, and (iii) each Additional Revolving Lender, the Borrower Representative and the Administrative Agent shall have executed and delivered to the Administrative Agent a Revolving Credit Facility Joinder;
(b) the Administrative Agent shall have received the Collateral Documents and other documentation identified on Schedule A-1 hereto, in each case in form and substance reasonably acceptable to the Administrative Agent;
(c) each of the representations and warranties contained in Section 7 of this Amendment 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 Effective Date;
(d) at the time of and immediately after giving effect to this Amendment and the transactions occurring on the Amendment Effective Date (including the incurrence of the Incremental Revolving Facility), no Default or Event of Default exists;
(e) the Administrative Agent shall have received a copy of this Amendment (including the Consent and Reaffirmation attached hereto)certificate, executed by Borrower, each Loan Party, Required Lenders and each Lender holding any outstanding Term B Loans;
(b) No Default or Event of Default shall have occurred and be continuing as of the date of this Amendment;
(c) On the date hereof, Borrower shall have made (and Agent shall have received in immediately available funds from Borrower) a voluntary prepayment of the Term B Loans in an amount equal to $6,000,000, which $6,000,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(d) On the date hereof, Agent shall have received $1,500,000 in immediately available funds from the Cash Reserve Account, which the parties hereto agree shall be applied as a voluntary prepayment of the Term B Loans (such that, taken together with the prepayment described in clause (c) immediately above, the Term B Loans shall be paid down by an aggregate amount equal to $7,500,000 on the date hereof), which $1,500,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(e) Agent shall have received the Amendment Fee (as defined below) for the benefit of the applicable Lenders, and Borrower shall have paid all other fees and expenses (including fees and expenses of counsel to the extent invoiced) of Agent due and payable as of the date hereof in connection with this Amendment, the Credit Agreement and the other Loan Documents; and
(f) Agent shall have received the following documents in form and substance satisfactory reasonably acceptable to the Administrative Agent: , dated the Amendment Effective Date and signed by a Responsible Officer of the Borrower Representative (xi) unless otherwise deemed confirming compliance with the conditions set forth in Sections 5(c) and 5(d) hereof, (ii) certifying that the Incremental Revolving Commitments incurred hereunder are permitted to be a post-closing obligation by Agent, an amendment incurred pursuant to the Mortgage in favor of Agent with respect to the real property owned by Performant Recovery, Inc. located in St. ▇▇▇▇▇▇▇▇▇ County, Oregon (the "Mortgage Modification"), (y) secretary's or officer's certificates and resolutions with respect to Holdings and each of its Subsidiaries with respect to the organizational documents of each such Person and necessary corporate approval by each such Person to enter into this Amendment, and clause (z) legal opinions from outside counsel of Section 2.14(a) of the Existing Credit Agreement and setting forth the information and computations (in sufficient detail) required in order to Holdings and its Subsidiaries establish pro forma compliance with the requirements of such clause, (including Nevada local counsel with respect to Borroweriii) with respect to such matters pertaining to this Amendment as are reasonably determined to be applicable by Agent.certifying that Orion Engineered Carbons Holdco S.A.S. (“Carbons Holdco”) and
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Conditions to Effectiveness of Amendment. The effectiveness of this Amendment is subject to satisfaction of the following conditions precedent:
(a) Agent shall have received a copy of this Amendment (including the Consent and Reaffirmation attached hereto), executed by Borrower, each Loan Party, Party and Required Lenders and each Lender holding any outstanding Term B LoansLenders;
(b) No Default or Event of Default shall have occurred and be continuing as of the date of this Amendment;
(c) On the a date hereoffollowing February 12, 2016, Borrower shall have made (and Agent shall have received in immediately available funds from Borrowerfunds) a voluntary prepayment of the Term B Loans in an amount equal to $6,000,00022,500,000, which $6,000,000 22,500,000 voluntary prepayment of the Term B Loans shall (i) be applied pro rata to the then outstanding principal amount of the Term A Loans and Term B Loans, and (ii) as to the amounts applied to the Term A Loans and Term B Loans, be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) thereof in the inverse order of maturity;
(d) On the date hereof, Agent shall have received $1,500,000 in immediately available funds from the Cash Reserve Account, which the parties hereto agree shall be applied as a voluntary prepayment of the Term B Loans (such that, taken together with the prepayment described in clause (c) immediately above, the Term B Loans shall be paid down by an aggregate amount equal to $7,500,000 on the date hereof), which $1,500,000 voluntary prepayment of the Term B Loans shall be applied to the scheduled installments of the Term B Loans (after giving effect to this Amendment) in the inverse order of maturity;
(e) Agent shall have received the Amendment Fee (as defined below) for the benefit of the applicable Lenders, and Borrower shall have paid all other fees and expenses (including fees and expenses of counsel to the extent invoiced) of Agent due and payable as of the date hereof in connection with this Amendment, the Credit Agreement and the other Loan Documents; and
(fe) Agent shall have received evidence satisfactory to Agent that the Cash Reserve Account has been established by Borrower and has been funded with $7,500,000 in immediately available funds, and Borrower, Agent and ▇▇▇▇▇ Fargo Bank, National Association shall (unless Agent shall agree in writing in its sole discretion in a post-closing letter executed between Borrower and Agent prior to the effectiveness of this Amendment that such requirement shall be satisfied by Borrower on a post-closing basis on terms acceptable to Agent, which would include that failure to obtain such deposit account control agreement within the time period agreed therein (as such period may be extended by Agent in its sole discretion) would constitute an Event of Default) that such deposit account control agreement may be obtained following documents the effectiveness of this Amendment) have entered into a deposit account control agreement in form and substance satisfactory to Agent: (x) unless otherwise deemed to be a post-closing obligation by Agent, an amendment to Agent granting Agent sole dominion and control over the Mortgage in favor of Agent with respect to the real property owned by Performant Recovery, Inc. located in St. ▇▇▇▇▇▇▇▇▇ County, Oregon (the "Mortgage Modification"), (y) secretary's or officer's certificates and resolutions with respect to Holdings and each of its Subsidiaries with respect to the organizational documents of each such Person and necessary corporate approval by each such Person to enter into this Amendment, and (z) legal opinions from outside counsel to Holdings and its Subsidiaries (including Nevada local counsel with respect to Borrower) with respect to such matters pertaining to this Amendment as are reasonably determined to be applicable by AgentCash Reserve Account.
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