Conditions to the Restatement Date. The amendment and restatement of the Original Credit Agreement set forth in Section 3 and the Holdings Guaranty Agreement shall become effective on and after the date when the following conditions shall have been satisfied (the “Restatement Date”): (a) The Effective Date shall have occurred. (b) The Intercompany Subordination Agreement (as defined in the Amended and Restated Credit Agreement) shall have been executed and delivered by INSW, the Borrower, and the Subsidiary Guarantors. (c) The Administrative Agent will have received a closing certificate from an Authorized Officer of INSW in the form attached hereto as Annex G (the “Restatement Date Certificate”), together with all attachments thereto, certifying as to the satisfaction of the conditions set forth in Sections 4(d), 4(e), 4(g), 4(h), 4(i) and 4(j) of this Restatement Agreement and attaching the Disclosure Schedules. (d) The Merger Transactions will have been consummated concurrently with the Restatement Date substantially in accordance with the Merger Agreement, without any waiver, amendment or modification thereof, in each case, that is materially adverse to the Lenders unless consented to in writing by the Administrative Agent (such consent not to be unreasonably withheld or delayed). (e) The Consent Letter, and the waivers and amendments contained therein shall be in full force and effect and shall not have been terminated in accordance with the terms of the Consent Letter. (f) INSW shall cause to be delivered to the Administrative Agent a solvency certificate from an Authorized Officer of INSW, substantially in the form of Exhibit L to the Amended and Restated Credit Agreement, which shall be addressed to the Administrative Agent and dated as of the Restatement Date, setting forth the conclusion that, after giving effect to the Transactions, each Credit Party individually (after giving effect to rights of contribution and subrogation) and INSW and its Subsidiaries taken as a whole, are not insolvent, and will not be left with unreasonably small capital with which to engage in its business and will not have incurred debts beyond its ability to pay such debts as they become due. (g) On the Restatement Date, after giving effect to the consummation of the Transactions and the performance by the Credit Parties of the Credit Documents, the obligations incurred in connection therewith and the other transactions contemplated hereby, (i) there shall be no conflict with, or default under the INSW Credit Agreement or any other material agreement to which INSW, the Borrower or any Subsidiary Guarantor is a party and (ii) INSW and its Subsidiaries shall be in pro forma compliance with all Financial Covenants set forth in the INSW Credit Agreement. (h) On the Restatement Date, after giving effect to the consummation of the Transactions, INSW and its Subsidiaries shall have no outstanding Financial Indebtedness (as defined in the Amended and Restated Credit Agreement) or Contingent Obligations (as defined in the Amended and Restated Credit Agreement) except for those expressly permitted under the Credit Documents. (i) On and as of the Restatement Date, all representations and warranties of INSW and its Subsidiaries contained in this Restatement Agreement, the Amended and Restated Credit Agreement or in any other Credit Document shall be true and correct in all material respects (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date). (j) Since the Effective Date, there shall not have occurred any Diamond Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof) or Seaways Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof) that is continuing as of the Restatement Date. (k) The Administrative Agent shall have received, on behalf of itself and the Lenders, the following legal opinions with respect to the Amended and Restated Credit Agreement, the Holdings Guaranty Agreement and the Intercompany Subordination Agreement and any other Credit Documents not covered by the opinions delivered in Section 2(g) of this Restatement Agreement: (i) special New York counsel to each of the Credit Parties (including INSW) (which shall be Holland & Knight LLP or another New York law firm reasonably acceptable to the Administrative Agent), an opinion addressed to the Administrative Agent and each of the Lenders and dated as of the Restatement Date as to matters of New York law and Delaware corporate law, and (ii) special Republic of the M▇▇▇▇▇▇▇ Islands counsel to each of the Credit Parties (which shall be Holland & Knight LLP or another law firm qualified to render an opinion as to the Republic of the M▇▇▇▇▇▇▇ Islands law reasonably acceptable to the Administrative Agent), an opinion addressed to the Administrative Agent and each of the Lenders and dated as of the Restatement Date. (l) INSW shall have delivered to the Administrative Agent (i) the audited consolidated balance sheets and related consolidated statements of operations, stockholders’ equity and cash flows of Holdings and its Subsidiaries (other than the DSS Group) as of the fiscal year ended December 31, 2020, (ii) the unaudited consolidated balance sheets and related consolidated statements of operations, stockholders’ equity and cash flows of Holdings and its Subsidiaries (other than the DSS Group) for each fiscal quarter ended at least 45 days prior to the Restatement Date (the financial statements referred to in clauses (i) and (ii), collectively, the “Historical Financial Statements”) and (iii) pro forma consolidated balance sheet of INSW and its Subsidiaries (including DSS Inc. and its Subsidiaries) and a pro forma consolidated statement of income of INSW and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four fiscal quarter period ended at least 45 days (or 90 days with respect to any four fiscal quarter period ending on the last day of a fiscal year) before the Restatement Date, prepared after giving effect to the Transactions as if the Transactions had occurred at the beginning of such period; provided that the requirement to deliver the pro forma financial statements referred to in this clause (l)(iii) may be satisfied by delivery of a registration statement on Form S-4 which includes such pro forma financial information and which Form S-4 has been posted on the SEC website accessible through h▇▇▇://▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇/searchedgar/webusers.htm or such successor webpage of the SEC thereto. The Historical Financial Statements have been prepared in accordance with GAAP consistently applied throughout the applicable period covered, respectively, thereby and present fairly and accurately in all material respects the financial condition and results of operations and, if applicable, cash flows of INSW and its Subsidiaries as of the dates and for the periods to which they relate (subject, in the case of interim financial statements, to normal year-end audit adjustments and the absence of footnotes). Except as set forth in the Historical Financial Statements and the most recent financial statements delivered by the Borrower pursuant to Sections 7.01(a) and 7.01(b) of the Original Credit Agreement, as of the Restatement Date, there are no liabilities of Holdings, the Borrower or any of their respective Subsidiaries of any kind, whether accrued, contingent, absolute, determined, determinable or otherwise, that would reasonably be expected to have (i) with respect to the DSS Group, a Diamond Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof) or (ii) with respect to INSW and its Subsidiaries, a Seaways Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof). (m) INSW shall have delivered to the Administrative Agent forecasts of financial performance consisting of projected income statements, balance sheets and cash flows of INSW and its Subsidiaries, for the fiscal years 2021-2024 (the “Projections”) and the assumptions upon which the Projections are based. The Projections have been prepared in good faith by Holdings based upon assumptions that are reasonable at the time made and at the time the related Projections are made available to the Lenders (it being understood by the parties that projections by their nature are inherently uncertain, no assurances are being given that the results reflected in such Projections will be achieved, that actual results may differ and that such differences may be material). (n) For the account of each Consenting Lender, a non-refundable consent fee equal to 0.20% of the aggregate principal amount of Loans and undrawn Commitments of such Lender as of the date of this Agreement, which fee will be due and payable on the Restatement Date to the Administrative Agent for further distribution to each such Consenting Lender. (o) Payment of all fees and all other reasonable fees and documented out-of-pocket costs and expenses (including, without limitation, the reasonable legal fees and expenses of White & Case LLP and other local counsel to the Administrative Agent) and other compensation due and payable on or prior to the Restatement Date, in each case, payable to the Administrative Agent, the Collateral Agent and the Lenders in respect of the transactions contemplated by this Restatement Agreement to the extent reasonably invoiced at least two (2) Business Days prior to the Restatement Date. (p) The Administrative Agent and each of the Lenders shall have received all “know your customer” information required pursuant to the PATRIOT Act and the Beneficial Ownership Regulation in connection with their respective internal compliance regulations or other information requested by any Lender or the Administrative Agent to satisfy related checks under all applicable laws and regulations pursuant to the transactions contemplated hereby, in each case, to the extent requested by any Lender (which shall make such request through the Administrative Agent) or the Administrative Agent not later than five (5) Business Days prior to the Restatement Date. (q) On the Restatement Date, the Administrative Agent shall deliver written notice to the Lenders, the Credit Parties and INSW of the occurrence of the Restatement Date.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (International Seaways, Inc.)
Conditions to the Restatement Date. The amendment and restatement of the Original Credit Agreement set forth in Section 3 and the Holdings Guaranty Agreement shall become effective on and after the date when the following conditions shall have been satisfied (the “Restatement Date”):
(a) The Effective Date shall have occurred.
(b) The Intercompany Subordination Agreement (as defined in the Amended and Restated Credit Agreement) shall have been executed and delivered by INSW, the Borrower, and the Subsidiary Guarantors.
(c) The Administrative Agent will have received a closing certificate from an Authorized Officer of INSW in the form attached hereto as Annex G (the “Restatement Date Certificate”), together with all attachments thereto, certifying as to the satisfaction of the conditions set forth in Sections 4(d), 4(e), 4(g), 4(h), 4(i) and 4(j) of this Restatement Agreement and attaching the Disclosure Schedules.
(d) The Merger Transactions will have been consummated concurrently with the Restatement Date substantially in accordance with the Merger Agreement, without any waiver, amendment or modification thereof, in each case, that is materially adverse to the Lenders unless consented to in writing by the Administrative Agent (such consent not to be unreasonably withheld or delayed).
(e) The Consent Letter, Letter and the waivers and amendments contained therein shall be in full force and effect and shall not have been terminated in accordance with the terms of the Consent Letter.
(f) INSW shall cause to be delivered to the Administrative Agent a solvency certificate from an Authorized Officer of INSW, substantially in the form of Exhibit L to the Amended and Restated Credit Agreement, which shall be addressed to the Administrative Agent and dated as of the Restatement Date, setting forth the conclusion that, after giving effect to the Transactions, each Credit Party individually (after giving effect to rights of contribution and subrogation) and INSW and its Subsidiaries taken as a whole, are not insolvent, and will not be left with unreasonably small capital with which to engage in its business and will not have incurred debts beyond its ability to pay such debts as they become due.
(g) On the Restatement Date, after giving effect to the consummation of the Transactions and the performance by the Credit Parties of the Credit Documents, the obligations incurred in connection therewith and the other transactions contemplated hereby, (i) there shall be no conflict with, or default under the INSW Credit Agreement or any other material agreement to which INSW, the Borrower or any Subsidiary Guarantor is a party and (ii) INSW and its Subsidiaries shall be in pro forma compliance with all Financial Covenants set forth in the INSW Credit Agreement.
(h) On the Restatement Date, after giving effect to the consummation of the Transactions, INSW and its Subsidiaries shall have no outstanding Financial Indebtedness (as defined in the Amended and Restated Credit Agreement) or Contingent Obligations (as defined in the Amended and Restated Credit Agreement) except for those expressly permitted under the Credit Documents.
(i) On and as of the Restatement Date, all representations and warranties of INSW and its Subsidiaries contained in this Restatement Agreement, the Amended and Restated Credit Agreement or in any other Credit Document shall be true and correct in all material respects (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date).
(j) Since the Effective Date, there shall not have occurred any Diamond Delaware Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof) or Seaways Idaho Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof) that is continuing as of the Restatement Date.
(k) The Administrative Agent shall have received, on behalf of itself and the Lenders, the following legal opinions with respect to the Amended and Restated Credit Agreement, the Holdings Guaranty Agreement and the Intercompany Subordination Agreement and any other Credit Documents not covered by the opinions delivered in Section 2(g) of this Restatement Agreement:
(i) special New York counsel to each of the Credit Parties (including INSW) (which shall be Holland & Knight LLP or another New York law firm reasonably acceptable to the Administrative Agent), an opinion addressed to the Administrative Agent and each of the Lenders and dated as of the Restatement Date as to matters of New York law and Delaware corporate law, and
(ii) special Republic of the M▇▇▇▇▇▇▇▇ Islands counsel to each of the Credit Parties (which shall be Holland & Knight LLP or another law firm qualified to render an opinion as to the Republic of the M▇▇▇▇▇▇▇▇ Islands law reasonably acceptable to the Administrative Agent), an opinion addressed to the Administrative Agent and each of the Lenders and dated as of the Restatement Date.
(l) INSW shall have delivered to the Administrative Agent (i) the audited consolidated balance sheets and related consolidated statements of operations, stockholders’ equity and cash flows of Holdings and its Subsidiaries (other than the DSS Group) as of the fiscal year ended December 31, 2020, (ii) the unaudited consolidated balance sheets and related consolidated statements of operations, stockholders’ equity and cash flows of Holdings and its Subsidiaries (other than the DSS Group) for each fiscal quarter ended at least 45 days prior to the Restatement Date (the financial statements referred to in clauses (i) and (ii), collectively, the “Historical Financial Statements”) and (iii) pro forma consolidated balance sheet of INSW and its Subsidiaries (including DSS Inc. and its Subsidiaries) and a pro forma consolidated statement of income of INSW and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four fiscal quarter period ended at least 45 days (or 90 days with respect to any four fiscal quarter period ending on the last day of a fiscal year) before the Restatement Date, prepared after giving effect to the Transactions as if the Transactions had occurred at the beginning of such period; provided that the requirement to deliver the pro forma financial statements referred to in this clause (l)(iii) may be satisfied by delivery of a registration statement on Form S-4 which includes such pro forma financial information and which Form S-4 has been posted on the SEC website accessible through h▇▇▇://▇://▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇/searchedgar/webusers.htm or such successor webpage of the SEC thereto. The Historical Financial Statements have been prepared in accordance with GAAP consistently applied throughout the applicable period covered, respectively, thereby and present fairly and accurately in all material respects the financial condition and results of operations and, if applicable, cash flows of INSW and its Subsidiaries as of the dates and for the periods to which they relate (subject, in the case of interim financial statements, to normal year-end audit adjustments and the absence of footnotes). Except as set forth in the Historical Financial Statements and the most recent financial statements delivered by the Borrower pursuant to Sections 7.01(a) and 7.01(b) of the Original Credit Agreement, as of the Restatement Date, there are no liabilities of Holdings, the Borrower or any of their respective Subsidiaries of any kind, whether accrued, contingent, absolute, determined, determinable or otherwise, that would reasonably be expected to have (i) with respect to the DSS Group, a Diamond Delaware Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof) or (ii) with respect to INSW and its Subsidiaries, a Seaways an Idaho Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof).
(m) INSW shall have delivered to the Administrative Agent forecasts of financial performance consisting of projected income statements, balance sheets and cash flows of INSW and its Subsidiaries, for the fiscal years 2021-2024 (the “Projections”) and the assumptions upon which the Projections are based. The Projections have been prepared in good faith by Holdings based upon assumptions that are reasonable at the time made and at the time the related Projections are made available to the Lenders (it being understood by the parties that projections by their nature are inherently uncertain, no assurances are being given that the results reflected in such Projections will be achieved, that actual results may differ and that such differences may be material).
(n) For the account of each Consenting Lender, a non-refundable consent fee equal to 0.20% of the aggregate principal amount of Loans and undrawn Commitments of such Lender as of the date of this Agreement, which fee will be due and payable on the Restatement Date to the Administrative Agent for further distribution to each such Consenting Lender.
(o) Payment of all fees and all other reasonable fees and documented out-of-pocket costs and expenses (including, without limitation, the reasonable legal fees and expenses of White & Case LLP and other local counsel to the Administrative Agent) and other compensation due and payable on or prior to the Restatement Date, in each case, payable to the Administrative Agent, the Collateral Agent and the Lenders in respect of the transactions contemplated by this Restatement Agreement to the extent reasonably invoiced at least two (2) Business Days prior to the Restatement Date.
(p) The Administrative Agent and each of the Lenders shall have received all “know your customer” information required pursuant to the PATRIOT Act and the Beneficial Ownership Regulation in connection with their respective internal compliance regulations or other information requested by any Lender or the Administrative Agent to satisfy related checks under all applicable laws and regulations pursuant to the transactions contemplated hereby, in each case, to the extent requested by any Lender (which shall make such request through the Administrative Agent) or the Administrative Agent not later than five (5) Business Days prior to the Restatement Date.
(q) On the Restatement Date, the Administrative Agent shall deliver written notice to the Lenders, the Credit Parties and INSW of the occurrence of the Restatement Date.
Appears in 1 contract
Conditions to the Restatement Date. The amendment and restatement of the Original Credit Agreement set forth in Section 3 and the Holdings Guaranty Agreement shall become effective on and after the date when the following conditions shall have been satisfied (the “Restatement Date”):
(a) The Effective Date shall have occurred.
(b) The Intercompany Subordination Agreement (as defined in the Amended and Restated Credit Agreement) shall have been executed and delivered by INSW, the Borrower, and the Subsidiary Guarantors.
(c) The Administrative Agent will have received a closing certificate from an Authorized Officer of INSW in the form attached hereto as Annex G (the “Restatement Date Certificate”), together with all attachments thereto, certifying as to the satisfaction of the conditions set forth in Sections 4(d), 4(e), 4(g), 4(h), 4(i) and 4(j) of this Restatement Agreement and attaching the Disclosure Schedules.
(d) The Merger Transactions will have been consummated concurrently with the Restatement Date substantially in accordance with the Merger Agreement, without any waiver, amendment or modification thereof, in each case, that is materially adverse to the Lenders unless consented to in writing by the Administrative Agent (such consent not to be unreasonably withheld or delayed).
(e) The Consent Letter, Letter and the waivers and amendments contained therein shall be in full force and effect and shall not have been terminated in accordance with the terms of the Consent Letter.
(f) INSW shall cause to be delivered to the Administrative Agent a solvency certificate from an Authorized Officer of INSW, substantially in the form of Exhibit L to the Amended and Restated Credit Agreement, which shall be addressed to the Administrative Agent and dated as of the Restatement Date, setting forth the conclusion that, after giving effect to the Transactions, each Credit Party individually (after giving effect to rights of contribution and subrogation) and INSW and its Subsidiaries taken as a whole, are not insolvent, and will not be left with unreasonably small capital with which to engage in its business and will not have incurred debts beyond its ability to pay such debts as they become due.
(g) On the Restatement Date, after giving effect to the consummation of the Transactions and the performance by the Credit Parties of the Credit Documents, the obligations incurred in connection therewith and the other transactions contemplated hereby, (i) there shall be no conflict with, or default under the INSW Credit Agreement or any other material agreement to which INSW, the Borrower or any Subsidiary Guarantor is a party and (ii) INSW and its Subsidiaries shall be in pro forma compliance with all Financial Covenants set forth in the INSW Credit Agreement.
(h) On the Restatement Date, after giving effect to the consummation of the Transactions, INSW and its Subsidiaries shall have no outstanding Financial Indebtedness (as defined in the Amended and Restated Credit Agreement) or Contingent Obligations (as defined in the Amended and Restated Credit Agreement) except for those expressly permitted under the Credit Documents.
(i) On and as of the Restatement Date, all representations and warranties of INSW and its Subsidiaries contained in this Restatement Agreement, the Amended and Restated Credit Agreement or in any other Credit Document shall be true and correct in all material respects (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date).
(j) Since the Effective Date, there shall not have occurred any Diamond Delaware Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof) or Seaways Idaho Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof) that is continuing as of the Restatement Date.
(k) The Administrative Agent shall have received, on behalf of itself and the Lenders, the following legal opinions with respect to the Amended and Restated Credit Agreement, the Holdings Guaranty Agreement and the Intercompany Subordination Agreement and any other Credit Documents not covered by the opinions delivered in Section 2(g) of this Restatement Agreement:
(i) special New York counsel to each of the Credit Parties (including INSW) (which shall be Holland & Knight LLP or another New York law firm reasonably acceptable to the Administrative Agent), an opinion addressed to the Administrative Agent and each of the Lenders and dated as of the Restatement Date as to matters of New York law and Delaware corporate law, and
(ii) special Republic of the M▇▇▇▇▇▇▇ Islands counsel to each of the Credit Parties (which shall be Holland & Knight LLP or another law firm qualified to render an opinion as to the Republic of the M▇▇▇▇▇▇▇ Islands law reasonably acceptable to the Administrative Agent), an opinion addressed to the Administrative Agent and each of the Lenders and dated as of the Restatement Date.
(l) INSW shall have delivered to the Administrative Agent (i) the audited consolidated balance sheets and related consolidated statements of operations, stockholders’ equity and cash flows of Holdings and its Subsidiaries (other than the DSS Group) as of the fiscal year ended December 31, 2020, (ii) the unaudited consolidated balance sheets and related consolidated statements of operations, stockholders’ equity and cash flows of Holdings and its Subsidiaries (other than the DSS Group) for each fiscal quarter ended at least 45 days prior to the Restatement Date (the financial statements referred to in clauses (i) and (ii), collectively, the “Historical Financial Statements”) and (iii) pro forma consolidated balance sheet of INSW and its Subsidiaries (including DSS Inc. and its Subsidiaries) and a pro forma consolidated statement of income of INSW and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four fiscal quarter period ended at least 45 days (or 90 days with respect to any four fiscal quarter period ending on the last day of a fiscal year) before the Restatement Date, prepared after giving effect to the Transactions as if the Transactions had occurred at the beginning of such period; provided that the requirement to deliver the pro forma financial statements referred to in this clause (l)(iii) may be satisfied by delivery of a registration statement on Form S-4 which includes such pro forma financial information and which Form S-4 has been posted on the SEC website accessible through h▇▇▇://▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇/searchedgar/webusers.htm or such successor webpage of the SEC thereto. The Historical Financial Statements have been prepared in accordance with GAAP consistently applied throughout the applicable period covered, respectively, thereby and present fairly and accurately in all material respects the financial condition and results of operations and, if applicable, cash flows of INSW and its Subsidiaries as of the dates and for the periods to which they relate (subject, in the case of interim financial statements, to normal year-end audit adjustments and the absence of footnotes). Except as set forth in the Historical Financial Statements and the most recent financial statements delivered by the Borrower pursuant to Sections 7.01(a) and 7.01(b) of the Original Credit Agreement, as of the Restatement Date, there are no liabilities of Holdings, the Borrower or any of their respective Subsidiaries of any kind, whether accrued, contingent, absolute, determined, determinable or otherwise, that would reasonably be expected to have (i) with respect to the DSS Group, a Diamond Delaware Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof) or (ii) with respect to INSW and its Subsidiaries, a Seaways an Idaho Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof).
(m) INSW shall have delivered to the Administrative Agent forecasts of financial performance consisting of projected income statements, balance sheets and cash flows of INSW and its Subsidiaries, for the fiscal years 2021-2024 (the “Projections”) and the assumptions upon which the Projections are based. The Projections have been prepared in good faith by Holdings based upon assumptions that are reasonable at the time made and at the time the related Projections are made available to the Lenders (it being understood by the parties that projections by their nature are inherently uncertain, no assurances are being given that the results reflected in such Projections will be achieved, that actual results may differ and that such differences may be material).
(n) For the account of each Consenting Lender, a non-refundable consent fee equal to 0.20% of the aggregate principal amount of Loans and undrawn Commitments of such Lender as of the date of this Agreement, which fee will be due and payable on the Restatement Date to the Administrative Agent for further distribution to each such Consenting Lender.
(o) Payment of all fees and all other reasonable fees and documented out-of-pocket costs and expenses (including, without limitation, the reasonable legal fees and expenses of White & Case LLP and other local counsel to the Administrative Agent) and other compensation due and payable on or prior to the Restatement Date, in each case, payable to the Administrative Agent, the Collateral Agent and the Lenders in respect of the transactions contemplated by this Restatement Agreement to the extent reasonably invoiced at least two (2) Business Days prior to the Restatement Date.
(p) The Administrative Agent and each of the Lenders shall have received all “know your customer” information required pursuant to the PATRIOT Act and the Beneficial Ownership Regulation in connection with their respective internal compliance regulations or other information requested by any Lender or the Administrative Agent to satisfy related checks under all applicable laws and regulations pursuant to the transactions contemplated hereby, in each case, to the extent requested by any Lender (which shall make such request through the Administrative Agent) or the Administrative Agent not later than five (5) Business Days prior to the Restatement Date.
(q) On the Restatement Date, the Administrative Agent shall deliver written notice to the Lenders, the Credit Parties and INSW of the occurrence of the Restatement Date.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (International Seaways, Inc.)
Conditions to the Restatement Date. The amendment and restatement obligation of the Original Lenders to effect or permit the occurrence of the first Credit Agreement set forth in Section 3 and the Holdings Guaranty Agreement shall become effective on and after the date when Event hereunder is subject to the following conditions shall have been satisfied (the “Restatement Date”):precedent:
(a) The Effective Date shall have occurred.
(b) The Intercompany Subordination Agreement (as defined in the Amended and Restated Credit Agreement) shall have been executed and delivered by INSW, the Borrower, and the Subsidiary Guarantors.
(c) The Administrative Agent will have received a closing certificate from an Authorized Officer of INSW in the form attached hereto as Annex G (the “Restatement Date Certificate”), together with all attachments thereto, certifying as to the satisfaction of the conditions set forth in Sections 4(d), 4(e), 4(g), 4(h), 4(i) and 4(j) of this Restatement Agreement and attaching the Disclosure Schedules.
(d) The Merger Transactions will have been consummated concurrently with the Restatement Date substantially in accordance with the Merger Agreement, without any waiver, amendment or modification thereof, in each case, that is materially adverse to the Lenders unless consented to in writing by the Administrative Agent (such consent not to be unreasonably withheld or delayed).
(e) The Consent Letter, and the waivers and amendments contained therein shall be in full force and effect and shall not have been terminated in accordance with the terms of the Consent Letter.
(f) INSW shall cause to be delivered to the Administrative Agent a solvency certificate from an Authorized Officer of INSW, substantially in the form of Exhibit L to the Amended and Restated Credit Agreement, which shall be addressed to the Administrative Agent and dated as of the Restatement Date, setting forth the conclusion that, after giving effect to the Transactions, each Credit Party individually (after giving effect to rights of contribution and subrogation) and INSW and its Subsidiaries taken as a whole, are not insolvent, and will not be left with unreasonably small capital with which to engage in its business and will not have incurred debts beyond its ability to pay such debts as they become due.
(g) On the Restatement Date, after giving effect to the consummation of the Transactions and the performance by the Credit Parties of the Credit Documents, the obligations incurred in connection therewith and the other transactions contemplated hereby, (i) there shall be no conflict with, or default under the INSW Credit Agreement or any other material agreement to which INSW, the Borrower or any Subsidiary Guarantor is a party and (ii) INSW and its Subsidiaries shall be in pro forma compliance with all Financial Covenants set forth in the INSW Credit Agreement.
(h) On the Restatement Date, after giving effect to the consummation of the Transactions, INSW and its Subsidiaries shall have no outstanding Financial Indebtedness (as defined in the Amended and Restated Credit Agreement) or Contingent Obligations (as defined in the Amended and Restated Credit Agreement) except for those expressly permitted under the Credit Documents.
(i) On and as of the Restatement Date, all representations and warranties of INSW and its Subsidiaries contained in this Restatement Agreement, the Amended and Restated Credit Agreement or in any other Credit Document shall be true and correct in all material respects (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date).
(j) Since the Effective Date, there shall not have occurred any Diamond Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof) or Seaways Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof) that is continuing as of the Restatement Date.
(k) The Administrative Agent shall have receivedreceived each of the following, on behalf of itself in form and the Lenders, the following legal opinions with respect substance satisfactory to the Amended and Restated Credit Agreement, the Holdings Guaranty Agreement and the Intercompany Subordination Agreement and any other Credit Documents not covered by the opinions delivered in Section 2(g) of this Restatement AgreementAgent:
(i) special New York counsel to Counterparts of this Agreement executed by each of the Credit Parties (including INSW) (which shall be Holland & Knight LLP or another New York law firm reasonably acceptable to the Administrative Agent), an opinion addressed to the Administrative Agent and each of the Lenders and dated as of the Restatement Date as to matters of New York law and Delaware corporate law, andparties hereto;
(ii) special Republic Revolving Notes executed by the Borrower, payable to each Lender and complying with the applicable provisions of the MSection 2.8;
(iii) an opinion of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Islands LLP, counsel to each of the Credit Parties (which shall be Holland & Knight LLP or another law firm qualified to render an opinion as to the Republic of the M▇▇▇▇▇▇▇ Islands law reasonably acceptable to the Administrative Agent)Borrower, an opinion addressed to the Administrative Agent and each the Lenders substantially in the form of Exhibit H and covering such matters as are customary for financings of the type contemplated by the Loan Documents and such other matters as the Agent may reasonably request;
(iv) copies, certified by the Secretary or Assistant Secretary of the Borrower, of all corporate (or comparable) action taken by the Borrower to authorize the execution, delivery and performance of this Agreement;
(v) the Fees then due and payable to the Agent, on or prior to the Effective Date;
(vi) a Monthly Report calculated as of the end of the most recent calendar month;
(vii) a Compliance Certificate calculated as of the end of the most recent calendar quarter;
(viii) Such other documents, agreements and instruments as the Agent on behalf of the Lenders and dated as may reasonably request; and
(ix) There shall not have occurred or become known to the Agent or any of the Restatement Date.
(l) INSW shall have Lenders any event, condition, situation or status since the date of the information contained in the financial and business projections, budgets, pro forma data and forecasts concerning the Borrower delivered to the Administrative Agent (i) and the audited consolidated balance sheets and related consolidated statements of operations, stockholders’ equity and cash flows of Holdings and its Subsidiaries (other than the DSS Group) as of the fiscal year ended December 31, 2020, (ii) the unaudited consolidated balance sheets and related consolidated statements of operations, stockholders’ equity and cash flows of Holdings and its Subsidiaries (other than the DSS Group) for each fiscal quarter ended at least 45 days Lenders prior to the Restatement Date (the financial statements referred to in clauses (i) and (ii), collectively, the “Historical Financial Statements”) and (iii) pro forma consolidated balance sheet of INSW and its Subsidiaries (including DSS Inc. and its Subsidiaries) and a pro forma consolidated statement of income of INSW and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four fiscal quarter period ended at least 45 days (that has had or 90 days with respect to any four fiscal quarter period ending on the last day of a fiscal year) before the Restatement Date, prepared after giving effect to the Transactions as if the Transactions had occurred at the beginning of such period; provided that the requirement to deliver the pro forma financial statements referred to in this clause (l)(iii) may be satisfied by delivery of a registration statement on Form S-4 which includes such pro forma financial information and which Form S-4 has been posted on the SEC website accessible through h▇▇▇://▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇/searchedgar/webusers.htm or such successor webpage of the SEC thereto. The Historical Financial Statements have been prepared in accordance with GAAP consistently applied throughout the applicable period covered, respectively, thereby and present fairly and accurately in all material respects the financial condition and results of operations and, if applicable, cash flows of INSW and its Subsidiaries as of the dates and for the periods to which they relate (subject, in the case of interim financial statements, to normal year-end audit adjustments and the absence of footnotes). Except as set forth in the Historical Financial Statements and the most recent financial statements delivered by the Borrower pursuant to Sections 7.01(a) and 7.01(b) of the Original Credit Agreement, as of the Restatement Date, there are no liabilities of Holdings, the Borrower or any of their respective Subsidiaries of any kind, whether accrued, contingent, absolute, determined, determinable or otherwise, that would could reasonably be expected to have result in a Material Adverse Effect;
(ix) with respect No litigation, action, suit, investigation or other arbitral, administrative or judicial proceeding shall be pending or threatened which could reasonably be expected to the DSS Group, (1) result in a Diamond Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof) or (ii) with respect to INSW and its Subsidiaries, a Seaways Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof).
(m) INSW shall have delivered to the Administrative Agent forecasts of financial performance consisting of projected income statements, balance sheets and cash flows of INSW and its Subsidiaries, for the fiscal years 2021-2024 (the “Projections”) and the assumptions upon which the Projections are based. The Projections have been prepared in good faith by Holdings based upon assumptions that are reasonable at the time made and at the time the related Projections are made available to the Lenders (it being understood by the parties that projections by their nature are inherently uncertain, no assurances are being given that the results reflected in such Projections will be achieved, that actual results may differ and that such differences may be material).
(n) For the account of each Consenting Lender, a non-refundable consent fee equal to 0.20% of the aggregate principal amount of Loans and undrawn Commitments of such Lender as of the date of this Agreement, which fee will be due and payable on the Restatement Date to the Administrative Agent for further distribution to each such Consenting Lender.
(o) Payment of all fees and all other reasonable fees and documented out-of-pocket costs and expenses (including, without limitation, the reasonable legal fees and expenses of White & Case LLP and other local counsel to the Administrative Agent) and other compensation due and payable on or prior to the Restatement Date, in each case, payable to the Administrative Agent, the Collateral Agent and the Lenders in respect of the transactions contemplated by this Restatement Agreement to the extent reasonably invoiced at least two (2) Business Days prior restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Restatement Date.Loan Documents; and
(pxi) The Administrative Agent and each of the Lenders Borrower shall have received all “know your customer” information approvals, consents and waivers, and shall have made or given all necessary filings and notices as shall be required pursuant to the PATRIOT Act and the Beneficial Ownership Regulation in connection with their respective internal compliance regulations or other information requested by any Lender or the Administrative Agent to satisfy related checks under all applicable laws and regulations pursuant to consummate the transactions contemplated hereby, in each case, to the extent requested by any Lender (which shall make such request through the Administrative Agent) or the Administrative Agent not later than five (5) Business Days prior to the Restatement Date.
(q) On the Restatement Date, the Administrative Agent shall deliver written notice to the Lenders, the Credit Parties and INSW of hereby without the occurrence of any default under, conflict with or violation of (1) any Applicable Law or (2) any agreement, document or instrument to which the Restatement DateBorrower is a party or by which any of them or their respective properties is bound, except for such approvals, consents, waivers, filings and notices the receipt, making or giving of which would not reasonably be likely to (A) have a Material Adverse Effect, or (B) restrain or enjoin, impose materially burdensome conditions on, or otherwise materially and adversely affect the ability of the Borrower to fulfill its obligations under the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Technology Investment Capital Corp)
Conditions to the Restatement Date. The amendment and restatement obligations of the Original Lenders to make Loans and of the Issuing Bank to issue Letters of Credit Agreement set forth in Section 3 hereunder on the Restatement Date are subject to, and the Holdings Guaranty Agreement shall not become effective on and after until, the date when satisfaction of the following conditions shall have been satisfied (the “Restatement Date”):conditions:
(a) The Effective Date Administrative Agent (or its counsel) shall have occurredreceived (i) counterparts of (or written evidence satisfactory to the Administrative Agent (which may include facsimile or other electronic transmission of a signed signature page) that such party has signed a counterpart of) the Replacement Facility Amendment, executed by the Parent Borrower, each other Loan Party, the Administrative Agent, the Fronting Lender, each Issuing Bank, each Swingline Lender, Persons with aggregate Revolving Commitments of $500,000,000 and Persons committing therein to make or continue an aggregate principal amount of Term Loans equal to $275,000,000 and (ii) reasonably satisfactory evidence that (A) all Existing Term Loans shall have been paid in full or will be paid in full substantially simultaneously with the effectiveness of this Agreement, or replaced with Term Loans hereunder and (B) all Existing Revolving Commitments and Existing Revolving Loans shall be replaced with Revolving Commitments or Revolving Loans, as applicable, hereunder or otherwise terminated or repaid, as applicable (and in each case all accrued interest on the Existing Term Loans, Existing Revolving Loans and Existing Revolving Commitments and other amounts outstanding in respect thereof shall have been paid in full).
(b) The Intercompany Subordination Agreement (as defined in the Amended and Restated Credit Agreement) Administrative Agent shall have been executed and delivered by INSW, received a favorable written opinion (addressed to the Borrower, Administrative Agent and the Subsidiary GuarantorsLenders and dated the Restatement Date) of each of (i) ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, (ii) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and (iii) ▇▇▇▇▇ Day, in each case in form and substance reasonably satisfactory to the Administrative Agent. Each of Holdings and the Parent Borrower hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent will shall have received a closing certificate from an Authorized Officer of INSW in the form attached hereto such documents and certificates as Annex G (the “Restatement Date Certificate”), together with all attachments thereto, certifying as to the satisfaction of the conditions set forth in Sections 4(d), 4(e), 4(g), 4(h), 4(i) and 4(j) of this Restatement Agreement and attaching the Disclosure Schedules.
(d) The Merger Transactions will have been consummated concurrently with the Restatement Date substantially in accordance with the Merger Agreement, without any waiver, amendment or modification thereof, in each case, that is materially adverse to the Lenders unless consented to in writing by the Administrative Agent (such consent not or its counsel may reasonably request relating to be unreasonably withheld or delayed).
(e) The Consent Letterthe organization, existence and the waivers and amendments contained therein shall be in full force and effect and shall not have been terminated in accordance with the terms good standing of the Consent Letter.
(f) INSW shall cause to be delivered Parent Borrower, the authorization of the Transactions and any other legal matters relating to the Administrative Agent a solvency certificate from an Authorized Officer of INSWParent Borrower, substantially the Loan Documents or the Transactions, all in the form of Exhibit L to the Amended and Restated Credit Agreement, which shall be addressed substance satisfactory to the Administrative Agent and dated as of the Restatement Date, setting forth the conclusion that, after giving effect to the Transactions, each Credit Party individually (after giving effect to rights of contribution and subrogation) and INSW and its Subsidiaries taken as a whole, are not insolvent, and will not be left with unreasonably small capital with which to engage in its business and will not have incurred debts beyond its ability to pay such debts as they become duecounsel.
(g) On the Restatement Date, after giving effect to the consummation of the Transactions and the performance by the Credit Parties of the Credit Documents, the obligations incurred in connection therewith and the other transactions contemplated hereby, (i) there shall be no conflict with, or default under the INSW Credit Agreement or any other material agreement to which INSW, the Borrower or any Subsidiary Guarantor is a party and (ii) INSW and its Subsidiaries shall be in pro forma compliance with all Financial Covenants set forth in the INSW Credit Agreement.
(h) On the Restatement Date, after giving effect to the consummation of the Transactions, INSW and its Subsidiaries shall have no outstanding Financial Indebtedness (as defined in the Amended and Restated Credit Agreement) or Contingent Obligations (as defined in the Amended and Restated Credit Agreement) except for those expressly permitted under the Credit Documents.
(i) On and as of the Restatement Date, all representations and warranties of INSW and its Subsidiaries contained in this Restatement Agreement, the Amended and Restated Credit Agreement or in any other Credit Document shall be true and correct in all material respects (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date).
(j) Since the Effective Date, there shall not have occurred any Diamond Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof) or Seaways Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof) that is continuing as of the Restatement Date.
(k) The Administrative Agent shall have received, on behalf of itself and the Lenders, the following legal opinions with respect to the Amended and Restated Credit Agreement, the Holdings Guaranty Agreement and the Intercompany Subordination Agreement and any other Credit Documents not covered by the opinions delivered in Section 2(g) of this Restatement Agreement:
(i) special New York counsel to each of the Credit Parties (including INSW) (which shall be Holland & Knight LLP or another New York law firm reasonably acceptable to the Administrative Agent), an opinion addressed to the Administrative Agent and each of the Lenders and dated as of the Restatement Date as to matters of New York law and Delaware corporate law, and
(ii) special Republic of the M▇▇▇▇▇▇▇ Islands counsel to each of the Credit Parties (which shall be Holland & Knight LLP or another law firm qualified to render an opinion as to the Republic of the M▇▇▇▇▇▇▇ Islands law reasonably acceptable to the Administrative Agent), an opinion addressed to the Administrative Agent and each of the Lenders and dated as of the Restatement Date.
(l) INSW shall have delivered to the Administrative Agent (i) the audited consolidated balance sheets and related consolidated statements of operations, stockholders’ equity and cash flows of Holdings and its Subsidiaries (other than the DSS Group) as of the fiscal year ended December 31, 2020, (ii) the unaudited consolidated balance sheets and related consolidated statements of operations, stockholders’ equity and cash flows of Holdings and its Subsidiaries (other than the DSS Group) for each fiscal quarter ended at least 45 days prior to the Restatement Date (the financial statements referred to in clauses (i) and (ii), collectively, the “Historical Financial Statements”) and (iii) pro forma consolidated balance sheet of INSW and its Subsidiaries (including DSS Inc. and its Subsidiaries) and a pro forma consolidated statement of income of INSW and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four fiscal quarter period ended at least 45 days (or 90 days with respect to any four fiscal quarter period ending on the last day of a fiscal year) before the Restatement Date, prepared after giving effect to the Transactions as if the Transactions had occurred at the beginning of such period; provided that the requirement to deliver the pro forma financial statements referred to in this clause (l)(iii) may be satisfied by delivery of a registration statement on Form S-4 which includes such pro forma financial information and which Form S-4 has been posted on the SEC website accessible through h▇▇▇://▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇/searchedgar/webusers.htm or such successor webpage of the SEC thereto. The Historical Financial Statements have been prepared in accordance with GAAP consistently applied throughout the applicable period covered, respectively, thereby and present fairly and accurately in all material respects the financial condition and results of operations and, if applicable, cash flows of INSW and its Subsidiaries as of the dates and for the periods to which they relate (subject, in the case of interim financial statements, to normal year-end audit adjustments and the absence of footnotes). Except as set forth in the Historical Financial Statements and the most recent financial statements delivered by the Borrower pursuant to Sections 7.01(a) and 7.01(b) of the Original Credit Agreement, as of the Restatement Date, there are no liabilities of Holdings, the Borrower or any of their respective Subsidiaries of any kind, whether accrued, contingent, absolute, determined, determinable or otherwise, that would reasonably be expected to have (i) with respect to the DSS Group, a Diamond Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof) or (ii) with respect to INSW and its Subsidiaries, a Seaways Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof).
(m) INSW shall have delivered to the Administrative Agent forecasts of financial performance consisting of projected income statements, balance sheets and cash flows of INSW and its Subsidiaries, for the fiscal years 2021-2024 (the “Projections”) and the assumptions upon which the Projections are based. The Projections have been prepared in good faith by Holdings based upon assumptions that are reasonable at the time made and at the time the related Projections are made available to the Lenders (it being understood by the parties that projections by their nature are inherently uncertain, no assurances are being given that the results reflected in such Projections will be achieved, that actual results may differ and that such differences may be material).
(n) For the account of each Consenting Lender, a non-refundable consent fee equal to 0.20% of the aggregate principal amount of Loans and undrawn Commitments of such Lender as of the date of this Agreement, which fee will be due and payable on the Restatement Date to the Administrative Agent for further distribution to each such Consenting Lender.
(o) Payment of all fees and all other reasonable fees and documented out-of-pocket costs and expenses (including, without limitation, the reasonable legal fees and expenses of White & Case LLP and other local counsel to the Administrative Agent) and other compensation due and payable on or prior to the Restatement Date, in each case, payable to the Administrative Agent, the Collateral Agent and the Lenders in respect of the transactions contemplated by this Restatement Agreement to the extent reasonably invoiced at least two (2) Business Days prior to the Restatement Date.
(p) The Administrative Agent and each of the Lenders shall have received all “know your customer” information required pursuant to the PATRIOT Act and the Beneficial Ownership Regulation in connection with their respective internal compliance regulations or other information requested by any Lender or the Administrative Agent to satisfy related checks under all applicable laws and regulations pursuant to the transactions contemplated hereby, in each case, to the extent requested by any Lender (which shall make such request through the Administrative Agent) or the Administrative Agent not later than five (5) Business Days prior to the Restatement Date.
(q) On the Restatement Date, the Administrative Agent shall deliver written notice to the Lenders, the Credit Parties and INSW of the occurrence of the Restatement Date.
Appears in 1 contract
Conditions to the Restatement Date. The amendment and restatement of the Original Credit Agreement set forth in Section 3 and the Holdings Guaranty This Agreement shall become effective on as of the Restatement Date when, and after the date when only when, each of the following conditions shall have precedent has been satisfied (by the “Restatement Date”):Borrowers or waived by the Administrative Agent:
(a) The Effective Date shall have occurred.the Administrative Agent’s receipt of originals or telecopies or electronic copies (followed promptly by originals) unless otherwise specified of counterparts of this Agreement duly executed and delivered by (i) the Borrowers, (ii) the Required Lenders, (iii) each Term A Lender, (iv) each Term A-1 Lender, (v) each U.S. Revolving Credit Lender and (vi) each Multicurrency Revolving Credit Lender;
(b) The Intercompany Subordination Agreement (as defined the representations and warranties set forth in the Amended Sections 5.01 through 5.23 shall be true and Restated Credit Agreement) shall have been executed correct, or, if a representation does not include a materiality qualifier, true and delivered by INSW, the Borrower, and the Subsidiary Guarantors.correct in all material respects;
(c) The the Administrative Agent’s receipt, at least one Business Day prior to the Restatement Date, of all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case to the extent requested by the Administrative Agent will have received in writing at least two Business Days prior to the Restatement Date;
(d) the Administrative Agent’s receipt of the following, each of which shall be originals or electronic copies (followed promptly by originals) unless otherwise specified, each properly executed by a closing certificate from an Authorized Responsible Officer of INSW the signing Loan Party, each dated the Restatement Date (or, in the case of certificates of governmental officials, a recent date before the Restatement Date) and each in form and substance satisfactory to the Administrative Agent:
(i) the Guarantee Agreement, duly executed by a Responsible Officer of each Guarantor (other than GI Realty Trust 1996); and
(ii) the Company Collateral Agreement, duly executed by the Company and each of its Subsidiaries which is a Loan Party, together with:
(A) to the extent not delivered pursuant to the Existing Credit Agreement, certificates and instruments to the extent required to be delivered pursuant to the Company Collateral Agreement accompanied by undated stock powers or instruments of transfer executed in blank,
(B) to the extent not filed pursuant to the Existing Credit Agreement, proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Company Collateral Agreement, covering the Collateral described in the Company Collateral Agreement,
(C) a Perfection Certificate, in substantially the form of Exhibit I, duly executed by each of the Loan Parties, and
(D) evidence that all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Company Collateral Agreement has been taken;
(iii) a Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement (as each such term is defined in the Company Collateral Agreement and to the extent applicable), duly executed by the Company and each of its Subsidiaries which is a Loan Party which owns Collateral of the type subject to any applicable Intellectual Property Security Agreement, together with evidence that all action that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Intellectual Property Security Agreement has been taken;
(iv) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party or is to be a party;
(v) good standing certificates for each Domestic Loan Party as of a recent date in its state of organization or formation;
(vi) a favorable opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties, addressed to the Administrative Agent and each Lender, as to the matters set forth in Exhibit J-1 and such other matters concerning the Loan Parties and the Loan Documents as the Administrative Agent may reasonably request;
(vii) a favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and Macfarlanes LLP, special English counsels to the Administrative Agent, in each case in form and substance satisfactory to the Administrative Agent;
(viii) a certificate signed by a Responsible Officer of the Reporting Company certifying that the condition specified in Section 4.01(b) has been satisfied;
(ix) a certificate attesting to the Solvency of the Reporting Company and its Subsidiaries on a consolidated basis, from its chief financial officer, substantially in the form attached hereto as Annex G of Exhibit M; and
(x) the “Restatement Date Certificate”), New HoldCo Debenture (together with all attachments theretonotices and other documents of title required to be delivered under the New HoldCo Debenture and, certifying if applicable, executed by New HoldCo), substantially in the form of Exhibit G-3;
(e) unless waived by the Administrative Agent, the Reporting Company shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoices prior to or on the Restatement Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Reporting Company and the Administrative Agent);
(f) the Borrowers shall have paid all unpaid interest on the Loans, all unpaid letter of credit fees and all unpaid commitment fees, in each case accrued under the Existing Credit Agreement through the Restatement Date, and the Term A Loans, the U.S. Revolving Credit Loans and Multicurrency Revolving Credit Loans under the Existing Credit Agreement shall be refinanced on the Restatement Date;
(g) the Administrative Agent shall have received evidence satisfactory to it that the Interim Credit Agreement shall be terminated substantially concurrently with the satisfaction of the conditions set forth in Sections 4(d), 4(e), 4(g), 4(h), 4(i) and 4(j) of this Restatement Agreement and attaching the Disclosure Schedules.
(d) The Merger Transactions will have been consummated concurrently with the Restatement Date substantially in accordance with the Merger Agreement, without any waiver, amendment or modification thereof, in each case, that is materially adverse to the Lenders unless consented to in writing by the Administrative Agent (such consent not to be unreasonably withheld or delayed).
(e) The Consent Letter, and the waivers and amendments contained therein shall be in full force and effect and shall not have been terminated in accordance with the terms of the Consent Letter.
(f) INSW shall cause to be delivered to the Administrative Agent a solvency certificate from an Authorized Officer of INSW, substantially in the form of Exhibit L to the Amended and Restated Credit Agreement, which shall be addressed to the Administrative Agent and dated as of the Restatement Date, setting forth the conclusion that, after giving effect to the Transactions, each Credit Party individually (after giving effect to rights of contribution and subrogation) and INSW and its Subsidiaries taken as a whole, are not insolvent, and will not be left with unreasonably small capital with which to engage in its business and will not have incurred debts beyond its ability to pay such debts as they become due.
(g) On the Restatement Date, after giving effect to the consummation of the Transactions and the performance by the Credit Parties of the Credit Documents, the obligations incurred in connection therewith and the other transactions contemplated hereby, (i) there shall be no conflict with, or default under the INSW Credit Agreement or any other material agreement to which INSW, the Borrower or any Subsidiary Guarantor is a party and (ii) INSW and its Subsidiaries shall be in pro forma compliance with all Financial Covenants set forth in the INSW Credit Agreement.Section 4.01; and
(h) On the Restatement Date, after giving effect a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to the consummation Horsham Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Reporting Company and each Loan Party relating thereto). Without limiting the generality of the Transactions, INSW and its Subsidiaries shall have no outstanding Financial Indebtedness (as defined in the Amended and Restated Credit Agreement) or Contingent Obligations (as defined in the Amended and Restated Credit Agreement) except for those expressly permitted under the Credit Documents.
(i) On and as provisions of the Restatement Datelast paragraph of Section 9.03, all representations and warranties for purposes of INSW and its Subsidiaries contained determining compliance with the conditions specified in this Restatement AgreementSection 4.01, the Amended and Restated Credit each Lender that has signed this Agreement or in any other Credit Document shall be true and correct in all material respects (it being understood and agreed that any representation deemed to have consented to, approved or warranty which by its terms is made as of a specified date shall be required accepted or to be true and correct in all material respects only as of such specified date).
(j) Since satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Effective Date, there shall not have occurred any Diamond Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof) or Seaways Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof) that is continuing as of the Restatement Date.
(k) The Administrative Agent shall have received, on behalf of itself and the Lenders, the following legal opinions with respect to the Amended and Restated Credit Agreement, the Holdings Guaranty Agreement and the Intercompany Subordination Agreement and any other Credit Documents not covered by the opinions delivered in Section 2(g) of this Restatement Agreement:
(i) special New York counsel to each of the Credit Parties (including INSW) (which shall be Holland & Knight LLP or another New York law firm reasonably acceptable to the Administrative Agent), an opinion addressed to the Administrative Agent and each of the Lenders and dated as of the Restatement Date as to matters of New York law and Delaware corporate law, and
(ii) special Republic of the M▇▇▇▇▇▇▇ Islands counsel to each of the Credit Parties (which shall be Holland & Knight LLP or another law firm qualified to render an opinion as to the Republic of the M▇▇▇▇▇▇▇ Islands law reasonably acceptable to the Administrative Agent), an opinion addressed to the Administrative Agent and each of the Lenders and dated as of the Restatement Date.
(l) INSW shall have delivered to the Administrative Agent (i) the audited consolidated balance sheets and related consolidated statements of operations, stockholders’ equity and cash flows of Holdings and its Subsidiaries (other than the DSS Group) as of the fiscal year ended December 31, 2020, (ii) the unaudited consolidated balance sheets and related consolidated statements of operations, stockholders’ equity and cash flows of Holdings and its Subsidiaries (other than the DSS Group) for each fiscal quarter ended at least 45 days received notice from such Lender prior to the proposed Restatement Date (the financial statements referred to in clauses (i) and (ii), collectively, the “Historical Financial Statements”) and (iii) pro forma consolidated balance sheet of INSW and specifying its Subsidiaries (including DSS Inc. and its Subsidiaries) and a pro forma consolidated statement of income of INSW and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four fiscal quarter period ended at least 45 days (or 90 days with respect to any four fiscal quarter period ending on the last day of a fiscal year) before the Restatement Date, prepared after giving effect to the Transactions as if the Transactions had occurred at the beginning of such period; provided that the requirement to deliver the pro forma financial statements referred to in this clause (l)(iii) may be satisfied by delivery of a registration statement on Form S-4 which includes such pro forma financial information and which Form S-4 has been posted on the SEC website accessible through h▇▇▇://▇▇▇objection thereto.▇▇▇.▇▇▇/▇▇▇▇▇/searchedgar/webusers.htm or such successor webpage of the SEC thereto. The Historical Financial Statements have been prepared in accordance with GAAP consistently applied throughout the applicable period covered, respectively, thereby and present fairly and accurately in all material respects the financial condition and results of operations and, if applicable, cash flows of INSW and its Subsidiaries as of the dates and for the periods to which they relate (subject, in the case of interim financial statements, to normal year-end audit adjustments and the absence of footnotes). Except as set forth in the Historical Financial Statements and the most recent financial statements delivered by the Borrower pursuant to Sections 7.01(a) and 7.01(b) of the Original Credit Agreement, as of the Restatement Date, there are no liabilities of Holdings, the Borrower or any of their respective Subsidiaries of any kind, whether accrued, contingent, absolute, determined, determinable or otherwise, that would reasonably be expected to have (i) with respect to the DSS Group, a Diamond Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof) or (ii) with respect to INSW and its Subsidiaries, a Seaways Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof).
(m) INSW shall have delivered to the Administrative Agent forecasts of financial performance consisting of projected income statements, balance sheets and cash flows of INSW and its Subsidiaries, for the fiscal years 2021-2024 (the “Projections”) and the assumptions upon which the Projections are based. The Projections have been prepared in good faith by Holdings based upon assumptions that are reasonable at the time made and at the time the related Projections are made available to the Lenders (it being understood by the parties that projections by their nature are inherently uncertain, no assurances are being given that the results reflected in such Projections will be achieved, that actual results may differ and that such differences may be material).
(n) For the account of each Consenting Lender, a non-refundable consent fee equal to 0.20% of the aggregate principal amount of Loans and undrawn Commitments of such Lender as of the date of this Agreement, which fee will be due and payable on the Restatement Date to the Administrative Agent for further distribution to each such Consenting Lender.
(o) Payment of all fees and all other reasonable fees and documented out-of-pocket costs and expenses (including, without limitation, the reasonable legal fees and expenses of White & Case LLP and other local counsel to the Administrative Agent) and other compensation due and payable on or prior to the Restatement Date, in each case, payable to the Administrative Agent, the Collateral Agent and the Lenders in respect of the transactions contemplated by this Restatement Agreement to the extent reasonably invoiced at least two (2) Business Days prior to the Restatement Date.
(p) The Administrative Agent and each of the Lenders shall have received all “know your customer” information required pursuant to the PATRIOT Act and the Beneficial Ownership Regulation in connection with their respective internal compliance regulations or other information requested by any Lender or the Administrative Agent to satisfy related checks under all applicable laws and regulations pursuant to the transactions contemplated hereby, in each case, to the extent requested by any Lender (which shall make such request through the Administrative Agent) or the Administrative Agent not later than five (5) Business Days prior to the Restatement Date.
(q) On the Restatement Date, the Administrative Agent shall deliver written notice to the Lenders, the Credit Parties and INSW of the occurrence of the Restatement Date.
Appears in 1 contract
Sources: Credit Agreement (Arris Group Inc)
Conditions to the Restatement Date. The amendment and restatement of the Original Credit Agreement set forth in Section 3 and the Holdings Guaranty Agreement shall become effective on and after the date when the following conditions shall have been satisfied (the “Restatement Date”):
(a) The Effective Date shall have occurred.
(b) The Intercompany Subordination Agreement (as defined in the Amended and Restated Credit Agreement) shall have been executed and delivered by INSW, the Borrower, and the Subsidiary Guarantors.
(c) The Administrative Agent will have received a closing certificate from an Authorized Officer of INSW in the form attached hereto as Annex G (the “Restatement Date Certificate”), together with all attachments thereto, certifying as to the satisfaction of the conditions set forth in Sections 4(d), 4(e), 4(g), 4(h), 4(i) and 4(j) of this Restatement Agreement and attaching the Disclosure Schedules.
(d) The Merger Transactions will have been consummated concurrently with the Restatement Date substantially in accordance with the Merger Agreement, without any waiver, amendment or modification thereof, in each case, that is materially adverse to the Lenders unless consented to in writing by the Administrative Agent (such consent not to be unreasonably withheld or delayed).
(e) The Consent Letter, and the waivers and amendments contained therein shall be in full force and effect and shall not have been terminated in accordance with the terms of the Consent Letter.
(f) INSW shall cause to be delivered to the Administrative Agent a solvency certificate from an Authorized Officer of INSW, substantially in the form of Exhibit L to the Amended and Restated Credit Agreement, which shall be addressed to the Administrative Agent and dated as of the Restatement Date, setting forth the conclusion that, after giving effect to the Transactions, each Credit Party individually (after giving effect to rights of contribution and subrogation) and INSW and its Subsidiaries taken as a whole, are not insolvent, and will not be left with unreasonably small capital with which to engage in its business and will not have incurred debts beyond its ability to pay such debts as they become due.
(g) On the Restatement Date, after giving effect to the consummation of the Transactions and the performance by the Credit Parties of the Credit Documents, the obligations incurred in connection therewith and the other transactions contemplated hereby, (i) there shall be no conflict with, or default under the INSW Credit Agreement or any other material agreement to which INSW, the Borrower or any Subsidiary Guarantor is a party and (ii) INSW and its Subsidiaries shall be in pro forma compliance with all Financial Covenants set forth in the INSW Credit Agreement.
(h) On the Restatement Date, after giving effect to the consummation of the Transactions, INSW and its Subsidiaries shall have no outstanding Financial Indebtedness (as defined in the Amended and Restated Credit Agreement) or Contingent Obligations (as defined in the Amended and Restated Credit Agreement) except for those expressly permitted under the Credit Documents.
(i) On and as of the Restatement Date, all representations and warranties of INSW and its Subsidiaries contained in this Restatement Agreement, the Amended and Restated Credit Agreement or in any other Credit Document shall be true and correct in all material respects (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date).
(j) Since the Effective Date, there shall not have occurred any Diamond Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof) or Seaways Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof) that is continuing as of the Restatement Date.
(k) The Administrative Agent shall have received, on behalf of itself and the Lenders, the following legal opinions with respect to the Amended and Restated Credit Agreement, the Holdings Guaranty Agreement and the Intercompany Subordination Agreement and any other Credit Documents not covered by the opinions delivered in Section 2(g) of this Restatement Agreement:
(i) special New York counsel to each of the Credit Parties (including INSW) (which shall be Holland & Knight LLP or another New York law firm reasonably acceptable to the Administrative Agent), an opinion addressed to the Administrative Agent and each of the Lenders and dated as of the Restatement Date as to matters of New York law and Delaware corporate law, and
(ii) special Republic of the M▇▇▇▇▇▇▇▇ Islands counsel to each of the Credit Parties (which shall be Holland & Knight LLP or another law firm qualified to render an opinion as to the Republic of the M▇▇▇▇▇▇▇▇ Islands law reasonably acceptable to the Administrative Agent), an opinion addressed to the Administrative Agent and each of the Lenders and dated as of the Restatement Date.
(l) INSW shall have delivered to the Administrative Agent (i) the audited consolidated balance sheets and related consolidated statements of operations, stockholders’ equity and cash flows of Holdings and its Subsidiaries (other than the DSS Group) as of the fiscal year ended December 31, 2020, (ii) the unaudited consolidated balance sheets and related consolidated statements of operations, stockholders’ equity and cash flows of Holdings and its Subsidiaries (other than the DSS Group) for each fiscal quarter ended at least 45 days prior to the Restatement Date (the financial statements referred to in clauses (i) and (ii), collectively, the “Historical Financial Statements”) and (iii) pro forma consolidated balance sheet of INSW and its Subsidiaries (including DSS Inc. and its Subsidiaries) and a pro forma consolidated statement of income of INSW and its Subsidiaries as of and for the twelve-month period ending on the last day of the most recently completed four fiscal quarter period ended at least 45 days (or 90 days with respect to any four fiscal quarter period ending on the last day of a fiscal year) before the Restatement Date, prepared after giving effect to the Transactions as if the Transactions had occurred at the beginning of such period; provided that the requirement to deliver the pro forma financial statements referred to in this clause (l)(iii) may be satisfied by delivery of a registration statement on Form S-4 which includes such pro forma financial information and which Form S-4 has been posted on the SEC website accessible through h▇▇▇://▇://▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇/searchedgar/webusers.htm or such successor webpage of the SEC thereto. The Historical Financial Statements have been prepared in accordance with GAAP consistently applied throughout the applicable period covered, respectively, thereby and present fairly and accurately in all material respects the financial condition and results of operations and, if applicable, cash flows of INSW and its Subsidiaries as of the dates and for the periods to which they relate (subject, in the case of interim financial statements, to normal year-end audit adjustments and the absence of footnotes). Except as set forth in the Historical Financial Statements and the most recent financial statements delivered by the Borrower pursuant to Sections 7.01(a) and 7.01(b) of the Original Credit Agreement, as of the Restatement Date, there are no liabilities of Holdings, the Borrower or any of their respective Subsidiaries of any kind, whether accrued, contingent, absolute, determined, determinable or otherwise, that would reasonably be expected to have (i) with respect to the DSS Group, a Diamond Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof) or (ii) with respect to INSW and its Subsidiaries, a Seaways Material Adverse Effect (as defined in the Merger Agreement, as in effect on the date hereof).
(m) INSW shall have delivered to the Administrative Agent forecasts of financial performance consisting of projected income statements, balance sheets and cash flows of INSW and its Subsidiaries, for the fiscal years 2021-2024 (the “Projections”) and the assumptions upon which the Projections are based. The Projections have been prepared in good faith by Holdings based upon assumptions that are reasonable at the time made and at the time the related Projections are made available to the Lenders (it being understood by the parties that projections by their nature are inherently uncertain, no assurances are being given that the results reflected in such Projections will be achieved, that actual results may differ and that such differences may be material).
(n) For the account of each Consenting Lender, a non-refundable consent fee equal to 0.20% of the aggregate principal amount of Loans and undrawn Commitments of such Lender as of the date of this Agreement, which fee will be due and payable on the Restatement Date to the Administrative Agent for further distribution to each such Consenting Lender.
(o) Payment of all fees and all other reasonable fees and documented out-of-pocket costs and expenses (including, without limitation, the reasonable legal fees and expenses of White & Case LLP and other local counsel to the Administrative Agent) and other compensation due and payable on or prior to the Restatement Date, in each case, payable to the Administrative Agent, the Collateral Agent and the Lenders in respect of the transactions contemplated by this Restatement Agreement to the extent reasonably invoiced at least two (2) Business Days prior to the Restatement Date.
(p) The Administrative Agent and each of the Lenders shall have received all “know your customer” information required pursuant to the PATRIOT Act and the Beneficial Ownership Regulation in connection with their respective internal compliance regulations or other information requested by any Lender or the Administrative Agent to satisfy related checks under all applicable laws and regulations pursuant to the transactions contemplated hereby, in each case, to the extent requested by any Lender (which shall make such request through the Administrative Agent) or the Administrative Agent not later than five (5) Business Days prior to the Restatement Date.
(q) On the Restatement Date, the Administrative Agent shall deliver written notice to the Lenders, the Credit Parties and INSW of the occurrence of the Restatement Date.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Diamond S Shipping Inc.)