Effectiveness; Conditions Precedent. The amendments contained herein shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 Effective Date”): (a) the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent: (i) counterparts of this Amendment executed by the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer; (ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect; (iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents; (iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization; (v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered); (vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof; (vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing; (viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet. (b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 3 contracts
Sources: Credit Agreement (B. Riley Financial, Inc.), Credit Agreement (Babcock & Wilcox Enterprises, Inc.), Credit Agreement (Babcock & Wilcox Enterprises, Inc.)
Effectiveness; Conditions Precedent. The effectiveness of this Amendment and the amendments contained to the Fourth Amended Credit Agreement herein shall only be effective upon provided are subject to the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 Effective Date”):precedent:
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance reasonably acceptable to the Administrative Agent:
(i) counterparts of this Amendment Amendment, duly executed by the Loan Partieseach Borrower, each Guarantor, the Administrative Agent, each Lender under the Tranche A-4 Term Loan LendersCredit Agreement prior to giving effect to this Amendment that will continue as a Lender under the Credit Agreement after giving effect to this Amendment, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C IssuerJoining Lender;
(ii) Domestic Term Loan Notes executed by WFS and Revolving Notes executed by WFS, World Fuel Services Europe, Ltd. and World Fuel Singapore in favor of each Joining Lender that has requested a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 Effective Date (A) all of the representations Domestic Term Loan Note and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse EffectRevolving Note;
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy such certificates of resolutions duly adopted or other action, evidencing the authority and capacity (and if requested by the board of directors (or similar governing bodyAdministrative Agent, identity) of each such Loan Party, authorizing the execution, delivery and performance of the Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such Loan Party is a party, party or is to be, be a party, party and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; good standing certificates (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documentsif applicable) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, Borrower and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in Guarantor from its jurisdiction of organization;
(iv) favorable opinions of counsel to the Borrowers, in each case addressed to the Lenders, as to such matters as the Administrative Agent or the Singapore Agent may reasonably request; and
(v) satisfactory opinions a certificate signed by a Responsible Officer of WFS which shall include a list of the Guarantors and the Unrestricted Subsidiaries, if any, as of the Amendment No. 2 Effective Date and the aggregate book value of assets (including Equity Interests but excluding Investments that are eliminated in consolidation) represented by each such Guarantor and Unrestricted Subsidiary, as applicable, on an individual basis as of September 30, 2016 demonstrating compliance with the 70% Guaranty Threshold;
(b) an upfront fee shall have been received for the account of each of the Loan Parties’ counselLender, including the Loan Parties’ in-house counselany Joining Lender, regarding due executionparty hereto, enforceability and non-contravention of law, in form and substance satisfactory paid to the Administrative Agent for the account of such Lender, in accordance with that certain Joint Fee Letter dated as of October 12, 2016 (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇“Joint Fee Letter”) among WFS, Bank of America, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR& ▇▇▇▇▇ Incorporated, Inc.HSBC Bank USA, in form National Association, ▇▇▇▇▇ Fargo Bank, National Association and substance satisfactory ▇▇▇▇▇ Fargo Securities, LLC;
(c) an amendment fee shall have been received for the account of each Existing Lender party hereto, paid to the Administrative Agent for the account of such Existing Lender, in accordance with the Joint Fee Letter; and
(d) all other fees and expenses payable to the Administrative Agent (unless waived by the Administrative Agent), the Joint Lead Arrangers, the Singapore Agent and the Required Lenders, which fully backstops additional refinancing for Lenders (including all fees owing pursuant to any Fee Letter and the Borrower’s receipt reasonable fees and expenses of net cash proceeds of at least $200,000,000 counsel to the Administrative Agent to the extent invoiced prior to the date hereof) shall have been paid in full (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (to final settling of accounts for such fees and expenses).
Appears in 2 contracts
Sources: Credit Agreement (World Fuel Services Corp), Credit Agreement
Effectiveness; Conditions Precedent. The effectiveness of this Amendment and the amendments contained to the Credit Agreement herein shall only be effective upon provided are subject to the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 Effective Date”):precedent:
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance reasonably acceptable to the Administrative Agent:
(i) counterparts of this Amendment Amendment, duly executed by the Loan PartiesCompany, the Administrative Agent, the Tranche A-4 Term Loan LendersBorrowers, the Tranche A-5 Term Loan Lenders, the Required LendersSubsidiary Guarantors, each Revolving Credit Lender of the Existing Lenders and each L/C Issuer, in its capacity as L/C Issuerof the Joining Lenders (which Existing Lenders and Joining Lenders are listed on Schedule 2.01 attached hereto);
(ii) a certificate evidence of the chief financial officer or treasurer existence, good standing, authority and capacity of the Borrower certifying that as of Company and the Amendment No. 20 Effective Date (A) all of the representations Borrowers to execute, deliver and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of perform its obligations under the settlement agreements with respect to the Vølund Projects located at [***] Credit Agreement as amended hereby, including, (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iiix) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct true and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of for each such Loan Party, authorizing the execution, delivery and performance of the Amendment Borrowers and the Loan Documents to which such Loan Party is a party, or is to be, a partyCompany approving the amendments contemplated hereby, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (iiy) a true, correct and complete copy of certification that the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Partyincorporation, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction articles of organization;
(v) satisfactory opinions , by-laws or operating agreement, as applicable, of each of the Loan Parties’ counsel, including Borrowers and the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention Company have not been amended or otherwise modified since the effective date of lawthe Credit Agreement or, in form the alternative, attaching true and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ complete copies of all amendments and Amendment No. 19 to the extent not previously delivered);modifications thereto; and
(viiii) a solvency certificatesuch other documents, executed by a Responsible Officer of the Borrower in form instruments, opinions, certifications, undertakings, further assurances and substance reasonably acceptable to other matters as the Administrative Agent, which, among other things, the L/C Issuer or any Lender shall certify that the Borrower will be Solvent as of the date hereofreasonably request;
(viib) a funds flow memorandumthe Company shall have paid the fees in the amounts and at the times specified in the letter agreement, in form dated as of November 9, 2006, among the Company, the Administrative Agent and substance reasonably acceptable to BAS (the “Amendment Fee Letter”); and
(c) unless waived by the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower all fees and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory expenses payable to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for Lenders (including the Borrower’s receipt fees and expenses of net cash proceeds of at least $200,000,000 counsel to the Administrative Agent to the extent invoiced prior to the date hereof) estimated to date shall have been paid in full (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (to final settling of accounts for such fees and expenses).
Appears in 2 contracts
Sources: Credit Agreement (Carmax Inc), Credit Agreement (Carmax Inc)
Effectiveness; Conditions Precedent. The effectiveness of this Amendment and the amendments contained to the Credit Agreement herein shall only be effective upon provided are subject to the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 Effective Date”):precedent:
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance reasonably acceptable to the Administrative Agent:
(i) counterparts of this Amendment Amendment, duly executed by the Loan PartiesCompany, the Administrative Agent, the Tranche A-4 Term Loan LendersBorrowers, the Tranche A-5 Term Loan LendersSubsidiary Guarantors, the Required Lenders, each Revolving Credit Lender of the Existing Lenders that is increasing any Commitment pursuant to this Amendment, and each L/C Issuer, in its capacity as L/C Issuerof the Joining Lenders (which Joining Lenders are listed on Schedule 2.01 attached hereto);
(ii) a certificate evidence of the chief financial officer or treasurer existence, good standing, authority and capacity of the Borrower certifying that as of the Amendment No. 20 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence ofCompany, the Amendment No. 20 Effective Date Borrowers and (C) that since December 31the Subsidiary Guarantors to execute, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into deliver and performance of perform its obligations under the settlement agreements with respect to Credit Agreement as amended hereby, including, (x) a true and complete copy of resolutions for each of the Vølund Projects located at [***] Borrowers, the Company and the Subsidiary Guarantors approving the amendments contemplated hereby, and (y) a certification that the “Vølund Settlement Agreements”)) whichcertificate of incorporation, individually articles of organization, by-laws or operating agreement, as applicable, of each of the Borrowers, the Company and the Subsidiary Guarantors have not been amended or otherwise modified since the effective date of the Credit Agreement or, in the aggregatealternative, have constituted or would reasonably be expected to result in, a Material Adverse Effectattaching true and complete copies of all amendments and modifications thereto;
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed signed by a Responsible Officer of the Borrower Company certifying (A) as to the representations and warranties set forth in form Section 6(a), and substance (B) as to the absence of any action, suit, investigation or proceeding pending or, to the knowledge of the Company, threatened in any court or before any arbitrator or governmental authority that could reasonably acceptable to be expected have a Material Adverse Effect; and
(iv) such other documents, instruments, opinions, certifications, undertakings, further assurances and other matters as the Administrative Agent, which, among other things, the L/C Issuer or any Lender shall certify that the Borrower will be Solvent as of the date hereofreasonably request;
(viib) a funds flow memorandumthe Company shall have paid the fees, including fees for the benefit of the Joining Lenders and those Existing Lenders that are increasing any commitments pursuant to Section 2(a) hereof, in form the amounts and substance reasonably acceptable to at the times specified in the letter agreement, dated as of May 20, 2008, among the Company, the Administrative Agent and BAS (the “Amendment Fee Letter”); and
(c) unless waived by the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower all fees and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory expenses payable to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for Lenders (including the Borrower’s receipt fees and expenses of net cash proceeds of at least $200,000,000 counsel to the Administrative Agent to the extent invoiced prior to the date hereof) estimated to date shall have been paid in full (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (to final settling of accounts for such fees and expenses).
Appears in 2 contracts
Sources: Credit Agreement (Carmax Inc), Credit Agreement (Carmax Inc)
Effectiveness; Conditions Precedent. The amendments contained herein shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 16 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) counterparts of this Amendment executed by the Loan Parties, the Administrative Agent, the Tranche A-4 A-1 Term Loan Lenders, the Tranche A-5 A-2 Term Loan Lenders, the Required Tranche A-3 Term Loan Lenders, each Revolving Credit Lender and each a minimum of two (2) unaffiliated L/C IssuerIssuers, in its their respective capacity as L/C Issuer, and the Required Lenders;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 16 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 16 Effective Date and (C) that since December 31, 20182017, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***], [***] and [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***], [***] and [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 15 to the extent not previously delivered);
(viiv) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(viiv) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 A-3 Term Loan Borrowing;Borrowing (the “Funds Flow”); and
(viiivi) executed copies of the Vølund Settlement Agreements, to be provided with a duly executed copy certification, signed by a Responsible Officer of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt , certifying that (a) the Vølund Settlement Agreements regarding [***] and [***] are in full force and effect as of net cash proceeds the Amendment No. 16 Effective Date and no parties thereto are in breach of at least $200,000,000 the terms thereof as of the Amendment No. 16 Effective Date and (inclusive b) the Vølund Settlement Agreement regarding [***] shall be in full force and effect immediately after the transfer of proceeds used to repay Revolving Credit Loans funds in accordance with the Funds Flow on the effective date Amendment No. 16 Effective Date and no parties thereto are in breach of the Refinancing (terms thereof as defined in of the Refinancing Term Sheet)), structured as set forth in the Refinancing Term SheetAmendment No. 16 Effective Date.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 2 contracts
Sources: Credit Agreement (B. Riley Financial, Inc.), Credit Agreement (Babcock & Wilcox Enterprises, Inc.)
Effectiveness; Conditions Precedent. The amendments contained herein shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 2 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) counterparts of this Amendment executed by the Loan Parties, the Limited Guarantor, the Administrative Agent, the Tranche A-4 Required Lenders and each Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C IssuerLender;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 2 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist onexist, or would result from the occurrence of, of the Amendment No. 20 2 Effective Date and (C) that since December 31, 20182019, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;; and
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereofhereof and after giving effect to any incurrence of Notes Indebtedness permitted under the Credit Agreement (as amended hereby) on a pro forma basis;
(viib) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative AgentAgent shall have received on account of each Revolving Credit Lender, detailing the flow of funds in respect to the Tranche A-4 Term Loan BorrowingPrepaid Deferred Facility Fee;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(bc) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 2 contracts
Sources: Credit Agreement (B. Riley Financial, Inc.), Credit Agreement (Babcock & Wilcox Enterprises, Inc.)
Effectiveness; Conditions Precedent. The amendments contained herein shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 3 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) counterparts of this Amendment executed by the Loan Parties, the Limited Guarantor, the Administrative Agent, the Tranche A-4 Required Lenders and each Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C IssuerLender;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 3 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist onexist, or would result from the occurrence of, of the Amendment No. 20 3 Effective Date and (C) that since December 31, 20182019, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iii) a certificate of the secretary or assistant secretary of each of (i) the Loan Parties that are Domestic Subsidiaries Subsidiaries, (ii) the Canadian Guarantor and (iii) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ De Monterrey, S.A. DE C.V., certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5May 14, 2019 2020 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 510, 2019 2018 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(viivi) a funds flow memorandumsatisfactory opinion of King & Spalding LLP, in form and substance reasonably acceptable as counsel to the Loan Parties, as to such matters reasonably requested by the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower Agent and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent Agent;
(vii) an executed perfection certificate for the Borrower and the Required Lenders, which fully backstops additional refinancing for Domestic Subsidiaries in form and substance reasonably satisfactory to the Borrower’s receipt of net cash proceeds of at least $200,000,000 Administrative Agent as well as any information with respect to intellectual property reasonably requested by the Administrative Agent;
(inclusive of proceeds used viii) executed Intellectual Property Security Agreements that the Administrative Agent deems necessary or reasonably desirable in order to repay Revolving Credit Loans on the effective date perfect or provide notice of the Refinancing Liens created under the U.S. Collateral Agreement in intellectual property Collateral, in form appropriate for filing with the United States Patent and Trademark Office and the United States Copyright Office; and
(ix) a duly executed assignment of mortgage in favor of the Administrative Agent with respect to that certain Open-End Mortgage, Assignment of Leases, Rents and Security Agreement dated as defined of November 4, 2020, by ICP Barberton ▇▇▇▇▇▇▇▇ LLC and Holdings Barberton ▇▇▇▇▇▇▇▇, LLC, in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheetfavor of The ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Company.
(b) there shall be no Revolving Credit Loans outstanding under the Credit Agreement as of the Amendment No. 3 Effective Date;
(c) the Administrative Agent shall have received (i) the Prepaid Deferred Fees and (ii) the Prepaid Deferred Interest;
(d) the Administrative Agent shall have received a prepayment notice in accordance with Section 2.05(a)(i) of the Credit Agreement with respect to each of (i) the Amendment No. 3 Term Loan Prepayment and (ii) any prepayment of the outstanding Revolving Credit Loans, if applicable;
(e) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 2 contracts
Sources: Credit Agreement (B. Riley Financial, Inc.), Credit Agreement (Babcock & Wilcox Enterprises, Inc.)
Effectiveness; Conditions Precedent. The amendments contained herein This Agreement shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 Effective Date”):upon:
(a) receipt by the Administrative Agent shall have received of copies of this Agreement duly executed by the Borrower, the Guarantors, the Administrative Agent, the Required Lenders (which must include each Lender increasing its Revolving Commitment pursuant to this Agreement);
(b) receipt by the Administrative Agent of the following documents or instruments following, in form and substance acceptable satisfactory to the Administrative Agent:
(i) counterparts of this Amendment executed by the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate copies of the chief financial officer or treasurer Organization Documents of the Borrower certifying that as of the Amendment No. 20 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, each Loan Party certified to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (orcomplete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, to the extent any such representation where applicable, and warranty is modified certified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a partyto be true and correct as of the date hereof (or, or is as to be, a party, and any such Organization Documents that such resolutions have not been amended, rescinded modified or otherwise terminated since the Closing Date, certifying that such Organization Documents have not been amended, modified or terminated since the Closing Date and are remain in full force and effect effect, and are true and complete, in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on the Closing Date);
(ii) any such certificates of resolutions or prior to April 5other action, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as incumbency certificates and/or other certificates of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) Responsible Officers of each such Loan Party, together with any amendments thereto, was previously delivered to Party as the Administrative Agent on or prior to April 5may require evidencing the identity, 2019 or is attached thereto, authority and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers capacity of each such Loan Party Responsible Officer thereof authorized to sign act as a Responsible Officer in connection with this Agreement and approving and adopting this Amendment, the Amendment transactions contemplated herein and authorizing the Loan Documents to which the such Loan Party is, or is to be, a party execution and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;delivery of this Amendment; and
(iviii) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is duly organized or formed, and is validly existing and existing, in good standing and qualified to engage in business in its jurisdiction state of organization;organization or formation.
(vc) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to receipt by the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 of an opinion of legal counsel to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable Loan Parties relating to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandumthis Agreement, in form and substance reasonably acceptable satisfactory to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;.
(viiid) a duly executed copy payment by the Borrower of a backstop financing commitment letterall reasonable and documented fees, between Borrower charges and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory disbursements of counsel to the Administrative Agent and in connection with this Agreement (directly to such counsel if requested by the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term SheetAdministrative Agent)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 2 contracts
Sources: Credit Agreement (Green Plains Inc.), Credit Agreement (Green Plains Partners LP)
Effectiveness; Conditions Precedent. The amendments contained herein shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 15 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) counterparts of this Amendment executed by the Loan Parties, the Administrative Agent, the Tranche A-4 A-1 Term Loan Lenders, the Tranche A-5 A-2 Term Loan Lenders, Lenders and the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 15 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 15 Effective Date and (C) that since December 31, 20182017, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;; and
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Sources: Credit Agreement (Babcock & Wilcox Enterprises, Inc.)
Effectiveness; Conditions Precedent. The amendments contained herein shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 18 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) counterparts of this Amendment executed by the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, and the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 18 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 18 Effective Date and (C) that since December 31, 20182017, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;; and
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Sources: Credit Agreement (Babcock & Wilcox Enterprises, Inc.)
Effectiveness; Conditions Precedent. The This Amendment, and the amendments contained herein herein, shall only not be effective upon until the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the following conditions precedent are satisfied being referred to as the “Amendment No. 20 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) counterparts of this Amendment executed signed by the Loan Partiesan Authorized Officer, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, Agent and the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(iib) a certificate no Event of the chief financial officer Default or treasurer of the Borrower certifying that as of the Amendment No. 20 Effective Date Potential Default shall have occurred and be continuing or would result after giving effect to this Amendment;
(Ac) all of the representations and warranties of the Borrower set forth in this Amendment are Amendment, the Existing Credit Agreement and the other Loan Documents shall be true and correct in all material respects (or, unless qualified by materiality or reference to the extent any such representation and warranty is modified by absence of a materiality or Material Adverse Effect standardChange, in all respects) as of such date (which event they shall be true and correct), except to the extent that such representations and warranties expressly relate specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), and except that the representations and warranties contained in Section 6.6 of the Amended Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to Section 8.11 of the Existing Credit Agreement; and
(Bd) no Default the Borrower shall exist on, have paid all fees and expenses payable on or would result from the occurrence of, before the Amendment No. 20 Effective Date and (C) that since December 31, 2018, there have not occurred as required by any facts, circumstances, changes, developments or events (other than with respect to Loan Document. Without limiting the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iii) a certificate generality of the secretary or assistant secretary of each provisions of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy last paragraph of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance Section 11.3 of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (Existing Credit Agreement or the equivalent organizational documents) Amended Credit Agreement, for purposes of determining compliance with the conditions specified in this Section 2, each such Loan PartyLender that has signed this Amendment shall be deemed to have consented to, together with any amendments theretoapproved or accepted or to be satisfied with, was previously delivered each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent on or shall have received notice from such Lender prior to April 5, 2019 or is attached the proposed Amendment Effective Date specifying its objection thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Effectiveness; Conditions Precedent. The effectiveness of this Amendment and the related amendments contained to the Credit Agreement herein shall only be effective upon provided are each subject to the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiversuch satisfaction, the “Tenth Amendment No. 20 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments received, in form and substance reasonably acceptable to the Administrative Agent:
(i) , counterparts of this Amendment Amendment, duly executed by the Loan Partieseach Credit Party, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, Agent and the Required Lenders, ; (b) each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 Effective Date (A) all of the representations and warranties set forth in this Amendment are Section 3 above is true and correct in all material respects (or, with respect to the extent any such representation and or warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any taking into account such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (iic) a trueafter giving effect to this Amendment, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a trueTenth Amendment Effective Date, correct, no Default or Event of Default shall have occurred and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereofbe continuing; and (ivd) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as Lenders shall have received all fees set forth in that certain Fee Letter dated as of April 26, 2020 among the Refinancing Term Sheet.
Borrower, Regions Bank and Regional Capital Markets, a division of Regions Bank; and (be) the Administrative Agent shall have confirmation that all other fees payable under this Amendment, under the Credit Agreement and under any engagement, commitment or fee letter with respect to this Amendment, and all reasonable out-of-pocket fees and expenses required to be paid on or before the Tenth Amendment Effective Date, have been paid, including the reasonable out-of-pocket fees and expenses of counsel for the Administrative Agent to the extent invoiced prior to the date hereof (without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (to final settling of accounts for such fees and expenses).
Appears in 1 contract
Sources: Credit Agreement (Ebix Inc)
Effectiveness; Conditions Precedent. The amendments contained herein (a) This Eighth Amendment shall only be effective only upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiversatisfaction, the “Eighth Amendment No. 20 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) Agent’s receipt of executed counterparts of this Eighth Amendment executed by the Loan Partiesall Borrowers, the Administrative Agentall Guarantors (if any), the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, Agent and the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 Effective Date (A) all of the The representations and warranties in this Amendment are true Section 3(a) and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respectsSection 3(b) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Eighth Amendment No. 20 Effective Date and (C) that since December 31, 2018, there Agent shall have not occurred any facts, circumstances, changes, developments received a certificate or events (other than with respect to the Vølund Projects located at [***] including but not limited to the certificates executed by a Senior Officer of each Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect MLP General Partner as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Eighth Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of lawEffective Date, in form and substance satisfactory to the Administrative Agent, stating that such conditions hereof are satisfied;
(iii) Borrowers shall have paid all reasonable out-of-pocket costs and expenses of Agent (which opinions shall also retroactively cover including the above described scope with respect reasonable fees and expenses of counsel for Agent) to the extent that the Borrower Agent has received an invoice therefor at least two Business Days prior to the Eighth Amendment ▇▇. ▇▇Effective Date (without prejudice to any post-closing settlement of such fees, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ costs and Amendment No. 19 expenses to the extent not previously deliveredso invoiced);
(viiv) Calumet Shreveport Refining, LLC, a solvency certificateDelaware limited liability company, executed by has closed one or more Sale and Leaseback Transactions AMERICAS/2024667609.2 with Stonebriar Commercial Finance LLC (or an Affiliate thereof) having aggregate gross proceeds (after giving effect to any prior lease for which a Responsible Officer of the Borrower in form and substance reasonably acceptable substitute lease with Stonebriar Commercial Finance LLC is executed) to the Administrative AgentCalumet Shreveport Refining, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds LLC of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.100,000,000; and
(bv) without prejudice to, or limiting Agent shall have received such documentation and other information as has been reasonably requested by Agent in connection with this Eighth Amendment and the Borrower’s obligations under, Section 10.04 (transactions contemplated hereby.
Appears in 1 contract
Sources: Credit Agreement (Calumet, Inc. /DE)
Effectiveness; Conditions Precedent. The effectiveness of this Amendment and the related amendments contained to the Credit Agreement herein shall only be effective upon provided are each subject to the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiversuch satisfaction, the “Amendment No. 20 13 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments received, in form and substance reasonably acceptable to the Administrative Agent:
(i) , counterparts of this Amendment Amendment, duly executed by the Loan Partieseach Credit Party, the Administrative Agent, Agent and the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(iib) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 Effective Date (A) all each of the representations and warranties set forth in this Amendment are Section 4 above is true and correct in all material respects (or, with respect to the extent any such representation and or warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any taking into account such representation and warranty is modified by a materiality or Material Adverse Effect standard));
(c) immediately after giving effect to this Amendment, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 13 Effective Date Date, no Default or Event of Default shall have occurred and be continuing;
(Cd) the Administrative Agent, on behalf of each Lender, shall have received a fee equal to 0.50% of the aggregate principal amount of the outstanding Term Loans and the Revolving Commitments (whether or not utilized) of all Lenders (calculated immediately after giving effect to the prepayment of Revolving Loans described in clause (f) below), such fee to be for the ratable account of, and paid by the Administrative Agent ratably to, each Lender;
(e) the Administrative Agent shall have confirmation that since December 31all other fees payable by any Credit Party under this Amendment, 2018under the Credit Agreement and under any engagement, there have not occurred any facts, circumstances, changes, developments commitment or events (other than fee letter with respect to this Amendment, and all reasonable and documented out-of-pocket fees and expenses required to be paid by any Credit Party on or before the Vølund Projects located at [***] including but not limited Amendment No. 13 Effective Date in accordance with and subject to the Borrower or its Subsidiaries’ entry into limitations in Section 11.2 of the Credit Agreement, have been paid, including the reasonable and performance documented out-of-pocket fees and expenses of its obligations under counsel for the settlement agreements with respect Administrative Agent, in each case, to the Vølund Projects located at [***] extent invoiced prior to the date hereof (the “Vølund Settlement Agreements”without prejudice to final settling of accounts for such fees and expenses)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iiif) the Borrower shall have made, or substantially concurrently with the Amendment No. 13 Effective Date shall make, a certificate voluntary prepayment of Revolving Loans and a corresponding reduction of Revolving Commitments, in an aggregate principal amount of not less than $5,000,000, which prepayment shall be applied ratably to the outstanding Revolving Loans of the secretary or assistant secretary Lenders and not result in a reduction of each any repayment installments of the Term Loan Parties that are Domestic Subsidiaries certifying A due under the Credit Agreement;
(g) the Borrower shall have paid all accrued and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by unpaid interest under the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent Existing Credit Agreement on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; Amendment No. 13 Effective Date;
(iiih) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that shall have received from the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as Borrower a forecast of consolidated cash flows of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of Credit Parties for the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign 13-week period following the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) 13 Effective Date in a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent;
(i) the Administrative Agent shall have received from the Credit Parties an updated listing of all deposit accounts and securities accounts of the Credit Parties, which, among other things, shall certify that including the Borrower will be Solvent institution at which each such account is maintained and whether such account constitutes a Material Account as of the date hereofAmendment No. 13 Effective Date;
(viij) a funds flow memorandumthe Administrative Agent shall have received from the Borrower, in form and substance reasonably acceptable to the Administrative Agent, detailing all documentation required by the flow Administrative Agent to increase the pledge of funds in respect Equity Interests of each First Tier Foreign Subsidiary from 65% to 100%, with such pledge delivered under New York law and the Tranche A-4 Term Loan Borrowing;laws of the jurisdiction of formation of such First Tier Foreign Subsidiary; and
(viiik) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory the Credit Parties shall have provided to the Administrative Agent certificates of each Credit Party executed by an Authorized Officer of such Credit Party including incumbency information and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date attaching resolutions of the Refinancing (as defined board of directors or similar governing body of such Credit Party approving and authorizing this Agreement. Notwithstanding anything to the contrary herein or in the Refinancing Term Sheet))Existing Credit Agreement, structured as set forth any prior notice required pursuant to Section 2.11(a) of the Existing Credit Agreement with respect to the prepayment described in the Refinancing Term Sheetclause (f) above is hereby waived.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Sources: Credit Agreement (Ebix Inc)
Effectiveness; Conditions Precedent. The amendments contained herein shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 6 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) counterparts of this Amendment executed by the Loan PartiesParties and the Required Lenders;
(ii) a copy of a duly executed amended and restated Equity Backstop Commitment Letter, in form and substance reasonably satisfactory to the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, Agent and the Required Lenders, each Revolving Credit Lender pursuant to which Equity Backstop Commitment Letter (A) the Borrower shall receive gross cash proceeds of at least $245,000,000 and each L/C Issuer(B) such proceeds shall be used to effect a Discharge of the Second Priority Obligations, in with the remainder to be retained by the Borrower and its capacity Subsidiaries for working capital purposes.
(iii) such documentation and other information as L/C Issuerhas been reasonably requested by the Administrative Agent with respect to Foreign Security Providers, including (A) any information requested with respect to B&W Power Generation Group Canada Corp., MEGTEC TurboSonic Inc., and B&W de Monterrey, S.A. de C.V. and any other proposed Foreign Security Provider and (B) the insurance policies of the Foreign Subsidiaries;
(iiiv) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 6 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on(other than any Non-Compliance Events), or would result from the occurrence of, of the Amendment No. 20 6 Effective Date and (C) that since December 31, 20182016, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(viivi) a funds flow memorandumsatisfactory opinions of each of Loan Parties’ counsels regarding due execution, in form enforceability and substance reasonably acceptable to the Administrative Agent, detailing the flow non-contravention of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc.law, in form and substance satisfactory to the Administrative Agent (and consistent in scope with the Required Lendersprior opinion delivered by the Loan Parties’ counsel to the Administrative Agent in connection with Amendment No. 5 (with respect to the opinion of ▇▇▇▇▇ ▇▇▇▇▇ LLP) or Amendment No. 3 (with respect to the opinions of ▇▇▇▇▇ Day and Beck, Chaet, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, S.C., which fully backstops additional refinancing for opinions shall also retroactively cover the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used above described scope with respect to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term SheetAmendment No. 5)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Sources: Credit Agreement (Babcock & Wilcox Enterprises, Inc.)
Effectiveness; Conditions Precedent. The This Amendment, and the amendments contained herein to the Credit Agreement provided in Section 1 hereof, shall only be become effective upon as of the satisfaction or waiver of each of date on which the following conditions precedent are satisfied or waived (the date of satisfaction or waiver, the “Amendment No. 20 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) counterparts of this Amendment executed by the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandumreceived, in form and substance reasonably acceptable satisfactory to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly at least one fully executed copy of a backstop financing commitment letterthis Amendment, between Borrower and ▇. ▇▇▇▇▇ FBRduly executed by each of the Loan Parties, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.;
(b) without prejudice on or before the Amendment Effective Date, to the Person to whom such fees are owing, any fees required to be paid pursuant to this Amendment or the fee letter dated as of the date hereof among the Company, Bank of America and BofA Securities, Inc.; and
(c) the Company shall have paid all reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent required to be paid pursuant to Section 10.04 and invoiced at least one Business Day prior to the Amendment Effective Date (provided that the Company shall remain liable for any additional reasonable and documented fees and expenses of such counsel to the Administrative Agent in accordance with Section 10.04). Without limiting the generality of the provisions in Article IX of the Credit Agreement, for purposes of determining compliance with the conditions specified in this Section, each Lender that has signed this Amendment shall be deemed to have consented to, approved or limiting accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Borrower’s obligations under, Section 10.04 (Administrative Agent shall have received notice from such Lender prior to the date hereof specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Avnet Inc)
Effectiveness; Conditions Precedent. The amendments contained herein shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 4 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) counterparts of this Amendment executed by the Loan Parties, the Limited Guarantor, the Administrative Agent, the Tranche A-4 Required Lenders and each Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;Lender; and
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 4 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist onexist, or would result from the occurrence of, of the Amendment No. 20 4 Effective Date and (C) that since December 31, 20182020, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(b) the Administrative Agent shall have received on account of each Revolving Credit Lender who consented to this Amendment, the Work Fee;
(c) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Effectiveness; Conditions Precedent. The amendments contained herein shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 1 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(ib) counterparts of this Amendment executed by the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, and the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(iic) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 1 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist onexist, or would result from the occurrence of, of the Amendment No. 20 1 Effective Date and (C) that since December 31, 20182019, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;; and
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vid) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Sources: Credit Agreement (Babcock & Wilcox Enterprises, Inc.)
Effectiveness; Conditions Precedent. The amendments contained herein This Amendment shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 Effective Date”):precedent:
(a) Receipt by the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) counterparts of this Amendment duly executed by the Loan Parties, Parties and the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(iib) Receipt by the Agent of (i) a certificate of the chief financial officer or treasurer a Responsible Officer of the Borrower certifying that as of the Amendment No. 20 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of lawBorrower, in form and substance satisfactory to the Administrative Agent attaching a certified copy of resolutions of the Loan Parties approving and adopting this Amendment and authorizing the execution and delivery of this Amendment and (which ii) such documents and certifications as the Agent may reasonably require to evidence that the Loan Parties are in good standing in their jurisdiction of incorporation;
(c) Receipt by the Agent of favorable opinions shall also retroactively cover the above described scope with respect to Amendment of ▇▇. ▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇. ▇▇ LLP and Amendment No. 19 Hawaii counsel reasonably acceptable to the extent not previously delivered)Agent, addressed to the Agent and each Lender, as to such matters concerning the Loan Parties and this Amendment as the Lenders may reasonably request;
(vid) a solvency certificate, executed Receipt by a Responsible Officer the Agent of copies of amendments to the Borrower 2012 Note Purchase Agreement and the 2013 Note Purchase Agreement in form and substance reasonably acceptable satisfactory to the Administrative Agent, which, among other things, shall certify that and a copy of any Note Purchase Agreement to be executed on the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, First Amendment Effective Date in form and substance reasonably acceptable satisfactory to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viiie) a duly Receipt by the Agent of the fully executed copy Intercreditor Agreement;
(f) Payment by the Loan Parties to the Agent and the Arranger, all fees due and payable to the Agent and the Arranger on the date hereof; and
(g) Payment by the Loan Parties of a backstop financing commitment letterthe reasonable and documented out-of-pocket costs and expenses of the Agent relating to this Amendment, between Borrower including without limitation, the fees and ▇. expenses of ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet& ▇▇▇ ▇▇▇▇▇ PLLC.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Sources: Credit Agreement (Matson, Inc.)
Effectiveness; Conditions Precedent. The amendments contained herein shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 12 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) counterparts of this Amendment executed by the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, and the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 12 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 12 Effective Date and (C) that since December 31, 20182017, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;; and
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counselcounsels regarding, including the Loan Parties’ in-house counselamong other items, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent and any other opinion from local counsel reasonably requested by the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered11);; and
(viiv) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.; and
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Sources: Credit Agreement (Babcock & Wilcox Enterprises, Inc.)
Effectiveness; Conditions Precedent. The amendments contained herein This Amendment shall only be effective effective, as of the date hereof, upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 Effective Date”):precedent:
(a) the Administrative Agent The Lender shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) counterparts copies of this Amendment duly executed by the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;Parties (including WD-40 UK).
(iib) a certificate The Lender shall have received (i) such resolutions or other action, incumbency certificates and/or other certificates of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iii) a certificate of the secretary or assistant secretary of each Responsible Officers of the Loan Parties that are Domestic Subsidiaries certifying (including WD-40 UK) as the Lender may require evidencing the identity, authority and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) capacity of each such Loan Party, authorizing the execution, delivery and performance of the Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the other Loan Documents to which such each Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct copies of the Organization Documents of each Loan Party (including WD-40 UK) certified to be true and complete copy as of a recent date by the appropriate Governmental Authority of the certificate state or other jurisdiction of its incorporation or certificate organization, where applicable, and certified by a Responsible Officer of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered Party to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, be true and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect correct as of the date thereof; Seventh Amendment Effective Date and (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent Lender may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party (including WD-40 UK) is duly organized or formed, and is validly existing and existing, in good standing and qualified to engage in business in its jurisdiction state of organization;.
(vc) satisfactory opinions Receipt by the Lender of each a favorable opinion of legal counsel to the Loan Parties’ counsel, Parties (including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(viWD-40 UK) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term SheetLender.
(bd) without prejudice toReceipt by the Lender of an Autoborrow Agreement duly executed by the Company providing for the automatic advance by the Lender to the Company of Revolving Loans in an aggregate amount not to exceed $30,000,000 at any time and which replaces that certain existing Autoborrow Agreement dated as of February 10, or limiting 2016 among the Borrower’s obligations underCompany, Section 10.04 as client and the Lender, as bank.
(e) Receipt by the Lender of all fees and expenses owed by the Loan Parties to the Lender in connection with this Amendment.
(f) The Company shall have paid all reasonable fees, charges and disbursements of counsel to the Lender in connection with this Amendment (directly to such counsel if requested by the Lender).
Appears in 1 contract
Sources: Credit Agreement (Wd 40 Co)
Effectiveness; Conditions Precedent. The amendments contained herein This Agreement shall only be become effective upon on the satisfaction or waiver of first date on which each of the following conditions precedent have been satisfied or waived (the date of satisfaction or waiversuch date, the “Fourth Amendment No. 20 Effective Date”):
(a) this Agreement shall have been executed by the Administrative Agent, the Loan Parties and the Signatory Lender (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) counterparts of this Amendment executed by the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in when taken together, bear the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iii) a certificate of the secretary or assistant secretary signatures of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documentsparties hereto;
(ivb) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing Waiver Effective Date (as defined in the Refinancing Term Sheet))Waiver) shall have occurred;
(i) all OpCo Senior Loans, structured as in the aggregate amount of $337,600,000, shall have been fully funded and (ii) the Administrative Agent shall have received the executed OpCo Senior Eighth Amendment;
(d) substantially concurrently with the Fourth Amendment Effective Date, (i) the Lender hall have been granted Class C Units on the terms set forth in the Refinancing Term Sheet.
Borrower LLC Agreement (bsuch Class C Units, the “HoldCo Equity Kicker”) without prejudice toso that the Lender holds Class C Units equal to the amount of the Loan made under the Credit Agreement by the Lender on the Fourth Amendment Effective Date; (ii) the Lender and Borrower shall have agreed in writing as to the portion of such Loan allocated to the purchase of the corresponding HoldCo Equity Kicker as required pursuant to Section 2.01(e) of the Credit Agreement; and (iii) the Lender shall have received a duly executed and delivered amendment to the Borrower LLC Agreement, or limiting including an amended Schedule I thereto to account for the Borrower’s obligations underissuance of the HoldCo Equity Kicker to the Lender, Section 10.04 (in the form attached hereto as Exhibit C.
Appears in 1 contract
Sources: Credit Agreement (Global Clean Energy Holdings, Inc.)
Effectiveness; Conditions Precedent. The amendments contained herein This Agreement, including the Upsized Tranche B Commitments, shall only be become effective upon on the satisfaction or waiver of first date on which each of the following conditions precedent have been satisfied or waived (the date of satisfaction or waiversuch date, the “Fifth Amendment No. 20 Effective Date”):
(a) This Agreement shall have been executed by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the following documents or instruments in form other parties hereto.
(b) Borrower has arranged for payment on the Fifth Amendment Effective Date of all reasonable and substance acceptable documented out-of-pocket fees and expenses then due and payable pursuant to the Administrative Agent:Financing Documents.
(ic) counterparts of After giving effect to the amendments set forth in this Amendment executed by the Loan PartiesAgreement, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 Effective Date (A) all of the representations and warranties of each of the Loan Parties set forth in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they Financing Documents shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified except where already qualified by a materiality or Material Adverse Effect standardEffect, in which case, such representations and warranties shall be true and correct in all respects) on and as of the Fifth Amendment Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date).
(d) After giving effect to the amendments set forth in this Agreement, (B) no Default or Event of Default shall exist on, or would result from the occurrence of, the Amendment No. 20 Effective Date have occurred and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect continuing as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Fifth Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term SheetEffective Date.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Sources: Credit Agreement (Global Clean Energy Holdings, Inc.)
Effectiveness; Conditions Precedent. The amendments contained herein shall only be effective upon the satisfaction on or waiver before January 31, 2022 of each of the following conditions precedent (the date of satisfaction or waiversatisfaction, the “Amendment No. 20 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance reasonably acceptable to the Administrative Agent:
(i) executed counterparts of this Amendment executed by all Borrowers, all Guarantors (if any), Agent and the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate copies of the chief financial officer or treasurer Organization Documents of each Obligor certified to be true and complete as of a recent date by the appropriate Governmental Authority of the Borrower certifying that as state or other jurisdiction of the Amendment No. 20 Effective Date (A) all of the representations its incorporation or organization, where applicable, and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified certified by a materiality secretary or Material Adverse Effect standard, in all respects) as assistant secretary of such date (except Obligor to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse EffectDate;
(iii) a certificate such certificates of the secretary resolutions or assistant secretary other action, incumbency certificates and/or other certificates of Senior Officers of each of Obligor or MLP General Partner as Agent may reasonably require evidencing the Loan Parties that are Domestic Subsidiaries certifying identity, authority and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) capacity of each such Loan Party, authorizing the execution, delivery and performance of the Senior Officer thereof authorized to act as a Senior Officer in connection with this Amendment and the Loan other Credit Documents to which such Loan Party Obligor is a party, or is to be, a party, party (and that Agent may rely on such resolutions have not been amended, rescinded or certificates until otherwise modified and are notified by the applicable Obligor in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documentswriting);
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party Obligor is duly organized or formed, and is validly existing and existing, in good standing and qualified to engage in its business in (A) the jurisdiction of organizationits incorporation or organization and (B) each jurisdiction where its ownership, lease or operation of Properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(vb) satisfactory opinions The indenture governing the 2027 Notes shall have been executed and delivered by all parties thereto, the 2027 Notes shall have been issued pursuant thereto and Agent shall have received a true, correct and complete copy of such indenture and the 2027 Notes;
(c) Agent shall have received searches as of a recent date prior to the Effective Date of UCC, judgment lien and tax lien search reports in the jurisdiction of the chief executive office of each Obligor and each jurisdiction where any Collateral is located or where a filing would need to be made in order to perfect Agent’s security interest in the Collateral, copies of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability financing statements and non-contravention liens on file in such jurisdictions and evidence that no Liens exist thereon other than Permitted Liens;
(d) Agent shall have received a legal opinion of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment Norton ▇▇. ▇▇, ▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificateUS LLP, executed by a Responsible Officer counsel for Obligors, dated as of the Borrower Effective Date and in form and substance reasonably acceptable satisfactory to Agent;
(e) Borrowers shall have paid to Agent the fees described in that certain fee letter dated as of January 10, 2022 between MLP Parent and Bank of America;
(f) Borrowers shall have paid all reasonable out-of-pocket costs and expenses of Agent (including the reasonable fees and expenses of counsel (including each local counsel) for Agent) to the Administrative Agent, which, among other things, shall certify extent that the Borrower will be Solvent has received an invoice therefor at least two Business Days prior to the Effective Date (without prejudice to any post-closing settlement of such fees, costs and expenses to the extent not so invoiced);
(g) Agent shall have received a Borrowing Base Certificate calculated as of the date hereoflast day of the month immediately preceding the Effective Date;
(viih) Agent shall have received a funds flow memorandumcertificate or certificates executed by a Senior Officer of each Borrower or MLP General Partner as of the Effective Date, in form and substance reasonably acceptable satisfactory to the Administrative Agent, detailing stating that the flow representations and warranties in Section 3(a) and Section 3(b) shall be true and correct as of funds in respect to the Tranche A-4 Term Loan Borrowing;Effective Date,
(viiii) Agent shall have received a duly certificate executed copy by a Senior Officer of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc.MLP General Partner as of the Effective Date, in form and substance reasonably satisfactory to Agent, certifying that the Administrative Obligors on a consolidated basis are Solvent; and
(j) Agent shall have received such documentation and other information as has been reasonably requested by Agent in connection with this Amendment and the Required Lenders, which fully backstops additional refinancing for transactions contemplated hereby. Without limiting the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date generality of the Refinancing (as defined provisions of Section 11.3 of the Credit Agreement, for purposes of determining compliance with the conditions specified in the Refinancing Term Sheet))this Section 2, structured as set forth in the Refinancing Term Sheet.
(b) without prejudice each Lender that has signed this Amendment shall be deemed to have consented to, approved or limiting accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless Agent shall have received notice from such Lender prior to the Borrower’s obligations under, Section 10.04 (Effective Date specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Calumet Specialty Products Partners, L.P.)
Effectiveness; Conditions Precedent. The effectiveness of this Amendment and the related amendments contained to the Credit Agreement herein shall only be effective upon provided are each subject to the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiversuch satisfaction, the “Ninth Amendment No. 20 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments received, in form and substance reasonably acceptable to the Administrative Agent:
(i) , counterparts of this Amendment Amendment, duly executed by the Loan Partieseach Credit Party, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, Agent and the Required Lenders, ; (b) each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 Effective Date (A) all of the representations and warranties set forth in this Amendment are Section 3 above is true and correct in all material respects (or, with respect to the extent any such representation and or warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any taking into account such representation and warranty is modified by a materiality or Material Adverse Effect standard)); (c) after giving effect to this Amendment, in all respects) as of such earlier datethe Ninth Amendment Effective Date, no Default or Event of Default shall have occurred and be continuing; and (d) the Administrative Agent shall have received a consent fee, for the ratable benefit of each Consenting Lender (defined below), (B) no Default shall exist on, or would result from equal to 0.15% times the occurrence of, the Amendment No. 20 Effective Date aggregate amount of Revolving Commitments and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted Term Loans held by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered Lenders who deliver to the Administrative Agent a signature page (without being in escrow) to this Amendment no later than 5:00 p.m. Eastern Time on or prior to April 5September 26, 2019 or is attached thereto, 2019; and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iiie) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent shall have confirmation that all other fees payable under this Amendment, under the Credit Agreement and under any engagement, commitment or fee letter with respect to this Amendment, and all reasonable out-of-pocket fees and expenses required to be paid on or prior to April 5before the Ninth Amendment Effective Date, 2019 or is attached theretohave been paid, including the reasonable out-of- pocket fees and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as expenses of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as counsel for the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable invoiced prior to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
hereof (vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (to final settling of accounts for such fees and expenses).
Appears in 1 contract
Sources: Credit Agreement (Ebix Inc)
Effectiveness; Conditions Precedent. The effectiveness of this Amendment and the amendments contained herein shall only be effective upon to the Existing Credit Agreement provided in Section 1 hereof are all subject to the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 Effective Date”):precedent:
(a) The Administrative Agent’s receipt of counterparts of this Amendment duly executed by the Borrower, the Lenders and the Administrative Agent.
(b) The Administrative Agent shall have received each an opinion or opinions of counsel for the Borrower, dated as of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) counterparts date of this Amendment executed by the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered addressed to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to Lenders which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to shall be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent.
(c) The Administrative Agent shall have received a Secretary’s Certificate of the Borrower dated as of the date of this Amendment, certifying (i) that there has been no change to the Organization Documents of the Borrower since the Closing Date (except as may be detailed in such certificate, and, in the event of any such change(s), such certificate shall attach a copy of such changed Organization Document(s) (which, to the extent filed with a Governmental Authority, shall be certified as of a recent date acceptable to the Administrative Agent by such Governmental Authority)), (ii) as to the resolutions of the governing body of the Borrower authorizing this Amendment, (iii) if the Administrative Agent has not already received an incumbency (including specimen signatures) of the Responsible Officers of the Borrower, as to the incumbency (including specimen signatures) of the Responsible Officers of the Borrower and (iv) as to the good standing, existence or its equivalent of the Borrower.
(d) The Agent shall have received a certificate, signed by a responsible officer of the Borrower, certifying that certifying that (i) the conditions set forth in Sections 4.02(a) and 4.02(b) of the Credit Agreement are been satisfied, (ii) there has not occurred, since December 31, 2024, any event or condition that has had, or could be reasonably expected, either individually or in the aggregate, to have, a Material Adverse Effect, (iii) that both immediately before and immediately after giving effect to this Amendment and the incurrence of indebtedness by the Borrower on the date hereof, the Borrower is, individually and together with its Subsidiaries on a consolidated basis, Solvent, and (iv) all boards of directors, shareholder, Governmental Authority and third party consents and approvals in connection with this Amendment and the transactions contemplated hereby and thereby have been obtained, and all applicable waiting periods have expired without any action being taken by any authority that could restrain, prevent or impose any material adverse condition on the Borrower and its Subsidiaries or the transactions contemplated hereby, or that could seek or threaten any of the foregoing, and no law or regulation shall be applicable which opinions could have such effect.
(e) The Administrative Agent shall also retroactively cover have received from the above described scope Borrower such fees and expenses that are payable in connection with respect to Amendment ▇▇. ▇▇, ▇▇▇the consummation of the transactions contemplated hereby and ▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR▇, Inc., LLP shall have received from the Borrower payment of all fees and expenses incurred in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (connection with this Amendment.
Appears in 1 contract
Effectiveness; Conditions Precedent. The This Amendment and the amendments contained herein included in Section 2, including the Upsized Commitments, shall only be become effective upon on the satisfaction or waiver of first date on which each of the following conditions precedent have been satisfied or waived (the date of satisfaction or waiversuch date, the “Amendment No. 20 Effective Date”):
(a) This Amendment shall have been executed by the Administrative Agent, the Loan Parties and the Signatory Lenders and the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the following documents or instruments in form and substance acceptable to the Administrative Agent:other parties hereto.
(ib) counterparts No Default or Event of this Amendment executed by the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender Default shall have occurred and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that be continuing as of the Amendment No. 20 Effective Date Date.
(Ac) all of the The representations and warranties of each of the Loan Parties set forth in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they Financing Documents shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified except where already qualified by a materiality or Material Adverse Effect standardEffect, in which case, such representations and warranties shall be true and correct in all respects) on and as of the Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date), .
(Bd) no Default shall exist on, or would result from Borrower has arranged for payment on the occurrence of, the Amendment No. 20 Effective Date of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.
(e) The Administrative Agent shall have received an Officer’s Certificate of each Loan Party dated as of the Effective Date certifying that (i) each of the conditions in this Section 4 have been satisfied and (Cii) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iii) a certificate none of the secretary or assistant secretary of each Organizational Documents of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by have been amended since the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered Closing Date other than Schedule I to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term SheetLLC Agreement.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Sources: Credit Agreement (Global Clean Energy Holdings, Inc.)
Effectiveness; Conditions Precedent. The amendments contained herein shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 11 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) counterparts of this Amendment executed by the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, and the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 11 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 11 Effective Date and (C) that since December 31, 20182017, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;; and
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form hereof and substance reasonably acceptable after giving effect to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date consummation of the Refinancing Orion Sale (as defined in the Refinancing Term Sheet)Amendment No. 7), structured as set forth in the Refinancing Term Sheet.on a pro forma basis; and
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Sources: Credit Agreement (Babcock & Wilcox Enterprises, Inc.)
Effectiveness; Conditions Precedent. The amendments contained herein shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 5 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) counterparts of this Amendment executed by the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, Parties and the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(ii) such documentation and other information as has been reasonably requested by the Administrative Agent at least two Business Days prior to the date hereof with respect to the Loan Parties in connection with this Amendment;
(iii) executed copies of the Equity Backstop Commitment Letter, in form and substance satisfactory to the Administrative Agent and the Required Lenders;
(iv) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 5 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on(other than any Non-Compliance Events), or would result from the occurrence of, of the Amendment No. 20 5 Effective Date and (C) that since December 31, 20182016, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;and
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Sources: Credit Agreement (Babcock & Wilcox Enterprises, Inc.)
Effectiveness; Conditions Precedent. The amendments contained herein shall only be effective upon effectiveness of this Amendment is subject to the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiversuch satisfaction, the “Amendment No. 20 Effective Date”):
(a) the Administrative Agent shall have received received, in form and substance reasonably acceptable to the Administrative Agent, each of the following documents or instruments in form and substance acceptable to the Administrative Agentinstruments:
(i) counterparts of this Amendment Amendment, duly executed by the Loan Partieseach Obligor, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender Agent and each L/C Issuer, in its capacity as L/C IssuerLender;
(ii) customary secretary’s certificates for each Obligor, certifying to and attaching (A) copies of the organizational documents, certified (to the extent applicable) as of a recent date by the appropriate Governmental Authority (or certification that such organizational documents have not been altered, amended, revoked or otherwise modified since the last delivery thereof to the Administrative Agent and the Lenders), (B) copies of resolutions approving the amendments provided herein and the other Transactions and authorizing the execution, delivery and performance of this Amendment, (C) copies of certificates of good standing, existence or the like as of a recent date from the appropriate Governmental Authority of its jurisdiction of formation or organization and (D) incumbency certificates, in each case, for each of the Obligors and certified by a Responsible Officer of each such Obligor in form and substance reasonably satisfactory to the Administrative Agent;
(iii) a certificate of the chief financial officer or treasurer a Responsible Officer of the Borrower certifying that as of the Amendment No. 20 Effective Date stating that: (A) all of the representations and warranties in the Loan Documents (after giving effect to this Amendment Amendment) are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date the Amendment Effective Date (except to the extent that such representations and warranties expressly relate to an any earlier date, in which case they such representations and warranties shall be have been true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), ) and (B) no Default default or event of default under the Loan Documents shall exist onhave occurred and be continuing, or would result from this Amendment or the occurrence of, related extensions of credit; and
(iv) a Notice of Borrowing with respect to the Advance of the Renewed Term A-1 Commitments to be funded as Term A-1 Loans on the Amendment No. 20 Effective Date as provided below, which such Notice of Borrowing shall be for a Base Rate Loan;
(b) each of the representations and warranties set forth in Section 5 above is true and correct in all material respects (Cor, with respect to any such representation or warranty qualified by a materiality or Material Adverse Effect standard, in all respects (taking into account such materiality or Material Adverse Effect standard));
(c) that since December 31, 20182020, (i) there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or has been no material adverse change in the aggregatefinancial condition, have constituted operations or would business of any Obligor or any other Subsidiary from that set forth in the financial statements referenced in Section 4.5(a) of the Existing DDTL Agreement as at each applicable date and (ii) there has been no development or event which has had or could reasonably be expected to result in, have a Material Adverse Effect;
(iiid) a certificate after giving effect to this Amendment, as of the secretary Amendment Effective Date, no Default or assistant secretary Event of Default shall have occurred and be continuing;
(e) the Administrative Agent shall have received confirmation that all fees payable under this Amendment and under the DDTL Agreement, and all reasonable out-of-pocket fees and expenses required to be paid on or before the Amendment Effective Date, have been, or will be, paid on the Amendment Effective Date, including the reasonable out-of-pocket fees and expenses of counsel for the Administrative Agent;
(f) substantially simultaneously with the Amendment Effective Date, each of the Loan Parties that are Domestic Subsidiaries certifying Lenders shall make an assignment of its ratable share of the Term A-1 Facility (including both Term A-1 Loans and confirming that undrawn Term A-1 Commitments (i) attached thereto is a true, correct and complete copy of resolutions duly adopted as increased by the board Renewed Term A-1 Commitments)) in the aggregate amount of directors $15,000,000 to Royal Bank of Canada, and the Assignment and Assumption (or similar governing bodysuch assignment and the related Assignment and Assumption, the “RBC Assignment”) of each and any other necessary documentation for such Loan Partyassignment shall have been executed and delivered by all applicable parties prior to, authorizing and as a condition precedent to the executionoccurrence of, delivery the Amendment Effective Date; provided that such assignment shall be deemed to be, and performance shall become, effective immediately after the Amendment Effective Date and immediately prior to the funding of the Renewed Term A-1 Commitments as set forth in the succeeding clause (g); and
(g) substantially simultaneously with the Amendment Effective Date, and immediately after the effectiveness of this Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect assignment provided in the form adopted; preceding clause (ii) a truef), correct and complete copy each of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as Lenders shall fund its Applicable Percentage of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party Renewed Term A-1 Commitments pursuant to the Amendment Notice of Borrowing delivered in connection therewith. The RBC Assignment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each funding of the Loan Parties’ counselassignments therein, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer funding of the Borrower Renewed Term A-1 Commitments on the Amendment Effective Date immediately after the RBC Assignment, and the payment of fees to Royal Bank of Canada in form and substance reasonably acceptable to connection with the Administrative Agent, which, RBC Assignment as separately agreed among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for shall all be effectuated in a manner and pursuant to instructions (including a funds flow, if applicable) provided by the Administrative Agent to the Borrower and the Lenders prior to the Amendment Effective Date so that, after giving effect thereto, the Lenders (including Royal Bank of Canada) hold the Term A-1 Loans ratably in accordance with their Applicable Percentages of the Term A-1 Facility after giving effect to this Amendment, the RBC Assignment and such funding. On the Amendment Effective Date, all outstanding Term A-1 Loans will be automatically converted (and this Amendment shall be deemed to be the Borrower’s receipt request therefor in lieu of net cash proceeds any Notice of at least $200,000,000 (inclusive of proceeds used Borrowing with respect to repay Revolving Credit Loans on the effective date such conversion) to Base Rate Loans, without breakage or any other additional amounts required pursuant to Section 3.3 of the Refinancing Existing DDTL Agreement (as defined and which such Loans may subsequently be converted to Term SOFR Loans in accordance with the Refinancing Term SheetDDTL Agreement)). For purposes of determining compliance with the conditions specified in this Section 6, structured as set forth in the Refinancing Term Sheet.
(b) without prejudice each Lender that has signed this Amendment shall be deemed to have consented to, approved or limiting accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender, as applicable, unless the Borrower’s obligations under, Section 10.04 (Administrative Agent shall have received notice from such Lender prior to the Amendment Effective Date specifying its objection thereto.
Appears in 1 contract
Sources: Delayed Draw Term Loan and Guaranty Agreement (ArcLight Clean Transition Corp. II)
Effectiveness; Conditions Precedent. The amendments contained herein This Amendment shall become effective as of the date hereof (the “Second Amendment Effective Date”) when, and only be effective upon the satisfaction or waiver of when, each of the following conditions precedent (shall have been satisfied or waived, in the date sole discretion of satisfaction or waiver, the “Amendment No. 20 Effective Date”):Agent and the Required Revolving Lenders:
(a) the Administrative The Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) counterparts of this Amendment duly executed by (i) each of the Loan Parties, Parties and (ii) each of the Administrative Agent, the Tranche A-4 Term Loan Revolving Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(iib) a certificate The Agent shall have received the Upfront Fee;
(c) The Loan Parties shall have paid all reasonable fees, costs and expenses of the chief financial officer or treasurer Agent (including, without limitation, fees, costs and expenses of counsel to the Agent) incurred in connection with this Amendment, to the extent invoiced to the Borrower certifying that as at least one Business Day prior to the Second Amendment Effective Date;
(d) No Default or Event of the Amendment No. 20 Effective Date Default shall have occurred and be continuing or would exist upon giving effect to this Amendment;
(Ae) all of the The representations and warranties of the Loan Parties in this Amendment are the Loan Documents shall be true and correct in all material respects (orexcept for representations and warranties that are already qualified by materiality, to the extent any such representation which representations and warranty is modified by a materiality or Material Adverse Effect standard, warranties shall be true and correct in all respects) on and as of such date (date, except to the extent that such representations and warranties expressly relate specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), ;
(Bf) no Default The Borrower shall exist on, or would result from be in compliance on a pro forma basis with Sections 8.09 and 8.10 of the occurrence of, Credit Agreement on the Second Amendment No. 20 Effective Date and (C) that since December 31immediately after giving effect to this Amendment, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect as certified in an officer’s certificate of a Responsible Officer of the Borrower delivered to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse EffectAgent;
(iiig) The Agent shall have received a certificate signed by a Responsible Officer of the secretary or assistant secretary Borrower certifying compliance with the conditions specified in clauses (d) and (e) of each this Section 5;
(h) The Agent shall have received a favorable opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Loan Parties that are Domestic Subsidiaries certifying Parties, addressed to the Agent and confirming that the Lenders, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders;
(i) attached thereto is a true, correct and complete copy The Agent shall have received (i) such certificates of resolutions duly adopted by the board or other action, incumbency certificates and/or other certificates of directors (or similar governing body) Responsible Officers of each such Loan PartyParty as the Agent may reasonably request evidencing the identity, authorizing the execution, delivery authority and performance capacity of the each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Amendment and the Loan Documents to which such Loan Party is a party, party or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, be a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(ivii) such documents and certifications as the Administrative Agent may reasonably require request to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is duly organized or formed, and validly existing and existing, in good standing (or similar status) in its jurisdiction of organization;
(vj) satisfactory opinions of each The Agent shall have received a certificate attesting to the Solvency of the Loan Parties’ counsel, including taken as a whole, immediately before and upon giving effect to this Amendment, from its Chief Financial Officer, substantially in the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention form of law, in form and substance satisfactory to Exhibit H of the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);Credit Agreement; and
(vik) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative The Agent and the Required LendersLenders shall have received at least three (3) Business Days prior to the Second Amendment Effective Date a certification regarding beneficial ownership required by 31 C.F.R. § 1010.230 and all documentation and other information about the Loan Parties reasonably requested in writing by it at least ten (10) Business Days prior to the Second Amendment Effective Date in order to comply with the Act. The Agent shall promptly notify the Borrower and the Lenders of the occurrence of the Second Amendment Effective Date, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheetnotice shall be conclusive and binding.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Sources: Credit Agreement (Hanger, Inc.)
Effectiveness; Conditions Precedent. The amendments contained herein shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 19 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) counterparts of this Amendment executed by the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, and the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 19 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 19 Effective Date and (C) that since December 31, 20182017, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;; and
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Sources: Credit Agreement (Babcock & Wilcox Enterprises, Inc.)
Effectiveness; Conditions Precedent. The amendments contained herein shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 10 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) counterparts of this Amendment executed by the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, and the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 10 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 10 Effective Date and (C) that since December 31, 20182017, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;; and
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form hereof and substance reasonably acceptable after giving effect to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date consummation of the Refinancing Orion Sale (as defined in the Refinancing Term Sheet)Amendment No. 7), structured as set forth in the Refinancing Term Sheet.on a pro forma basis; and
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Sources: Credit Agreement (Babcock & Wilcox Enterprises, Inc.)
Effectiveness; Conditions Precedent. The effectiveness of this Amendment and the related amendments contained to the Credit Agreement herein shall only be effective upon provided are each subject to the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiversuch satisfaction, the “Amendment No. 20 14 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments received, in form and substance acceptable to the Administrative Agent:
(i) , counterparts of this Amendment Amendment, duly executed by the Loan Partieseach Credit Party, the Administrative Agent, Agent and the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(iib) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 Effective Date (A) all each of the representations and warranties set forth in this Amendment are Section 4 above is true and correct in all material respects (or, with respect to the extent any such representation and or warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any taking into account such representation and warranty is modified by a materiality or Material Adverse Effect standard));
(c) immediately before and after giving effect to this Amendment, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 14 Effective Date Date, no Default or Event of Default shall have occurred and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effectcontinuing;
(iiid) a certificate the Administrative Agent shall have received certificates of each Credit Party executed by an Authorized Officer of such Credit Party, including incumbency information, and attaching corporate authorization materials and other resolutions of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by shareholders and/or the board of directors (or similar governing body) body of each such Loan Party, Credit Party approving and authorizing the execution, delivery and performance amendment contemplated hereby (all of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to shall be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent) or in each case, affirming no changes since the same were last delivered;
(e) the Administrative Agent shall have confirmation that all other fees payable by any Credit Party under this Amendment and the Credit Agreement, and all reasonable and documented out-of-pocket fees and expenses (which opinions including amounts projected to be accrued on or prior to the Amendment No. 14 Effective Date) required to be paid by any Credit Party on or before the Amendment No. 14 Effective Date in accordance with and subject to the limitations in Section 11.2 of the Credit Agreement, have been paid, including the reasonable and documented out-of-pocket fees and expenses of counsel for the Administrative Agent, in each case, to the extent invoiced at least two (2) Business Days prior to the date hereof (without prejudice to final settling of accounts for such fees and expenses);
(f) the Administrative Agent shall also retroactively cover have received from the above described scope with respect Borrower a forecast of weekly consolidated cash flows of the Credit Parties for the period commencing on the Amendment No. 14 Effective Date through September 30, 2023 in a form acceptable to Amendment ▇▇. ▇▇the Administrative Agent;
(g) the Administrative Agent shall have received from the Borrower, ▇▇▇in form and substance acceptable to the Administrative Agent, a perfection certificate executed and delivered by the Borrower (the “Perfection Certificate”);
(h) the Administrative Agent shall have received from the Borrower, in form and substance acceptable to the Administrative Agent, a customary officer’s certificate executed by the Credit Parties; and
(i) the Administrative Agent shall have received, in form and substance acceptable to the Administrative Agent, a customary opinion of ▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBRLLP, Inc., in form and substance satisfactory New York counsel to the Administrative Agent and Credit Parties. For purposes of determining compliance with the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as conditions set forth in the Refinancing Term Sheet.
(b) without prejudice this Section 5, each Lender that has signed and delivered this Amendment shall be deemed to have consented to, approved, accepted, be satisfied with, or limiting the Borrower’s obligations under, waived presentment of each document or other matter required under this Section 10.04 (5.
Appears in 1 contract
Sources: Credit Agreement (Ebix Inc)
Effectiveness; Conditions Precedent. The amendments contained herein This Amendment shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 Effective Date”):precedent:
(a) Receipt by the Administrative Agent shall have received each of copies of this Amendment duly executed by the Borrowers, the Guarantors and the Lenders.
(b) Receipt by the Administrative Agent of a certificate of a Responsible Officer of the following documents or instruments Company, in form and substance acceptable reasonably satisfactory to the Administrative Agent:
, (i) counterparts of this Amendment executed by the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iii) a certificate of the secretary or assistant secretary Organization Documents of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions delivered on the Closing Date have not been amended, rescinded supplemented or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains remain in full force and effect as of the date thereof; hereof or, if such Organization Documents have changed, attaching copies thereof and (iiiii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) attaching resolutions of each Loan Party approving and adopting this Amendment, the transactions contemplated herein and authorizing the execution and delivery of this Amendment and any documents, agreements or certificates related thereto and certifying that such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws resolutions have not been revoked, amended, rescinded supplemented or otherwise modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;.
(ivc) Receipt by the Administrative Agent of such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is duly organized or formed, and is validly existing and existing, in good standing and qualified to engage in business in its jurisdiction state of organization;organization or formation.
(vd) satisfactory Receipt by the Administrative Agent of opinions of each of legal counsel to the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable satisfactory to the Administrative Agent.
(e) Payment by the Loan Parties (i) to the Administrative Agent, detailing an amendment fee for the flow account of funds in respect each Lender delivering an executed counterpart of this Amendment to the Tranche A-4 Term Loan Borrowing;Administrative Agent on or before 5:00 p.m. Central time on September 18, 2013, in an amount equal to 0.10% of such Lender’s Revolving Commitment and (ii) to the Administrative Agent and MLPFS, all fees due and payable to the Administrative Agent, MLPFS on the date hereof pursuant to the terms of that certain Engagement Letter dated as of August 30, 2013 between MLPFS and the Company.
(viiif) a duly executed copy Payment by the Loan Parties of a backstop financing commitment letterthe reasonable out-of-pocket costs and expenses of the Administrative Agent, between Borrower including without limitation, the reasonable fees and ▇. expenses of ▇▇▇▇▇ FBR& ▇▇▇ ▇▇▇▇▇ PLLC, Inc.incurred in connection with this Amendment, in form and substance satisfactory each case to the Administrative Agent and extent invoiced in reasonable detail on or prior to the Required Lenders, which fully backstops additional refinancing for Business Day immediately preceding the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheethereof.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Effectiveness; Conditions Precedent. (a) The effectiveness of the amendments contained herein shall only be effective upon the satisfaction or waiver of each of and other provisions hereof are subject to the following conditions precedent (precedent, including, where applicable, that the date of satisfaction or waiver, the “Amendment No. 20 Effective Date”):
(a) the Administrative Agent Lender shall have received each of the following documents or instruments and other items (all such documents and other items must be in form and substance acceptable satisfactory to the Administrative Agent:Lender):
(i) counterparts of this Amendment This Agreement duly executed by the Loan Parties, Borrowers and the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C IssuerLender;
(ii) a certificate A letter agreement among the Lender, the Borrowers and the non-Borrower parties to the Designated Contracts pursuant to which such non-Borrower parties acknowledge and agree that so long as the Specified Events of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 Effective Date Default are outstanding (A) all the Borrowers shall not pay, and such non-Borrower parties shall not accept, any payment on account of the representations and warranties in this Amendment are true and correct in all material respects (or, to Borrowers' obligations under the extent any such representation and warranty is modified by Designated Contracts if as a materiality or Material Adverse Effect standard, in all respects) as result of such date (except to payment the extent that such representations aggregate amount of all obligations incurred by the Borrowers would be less than the Required Minimum Payables, and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default the Lender shall exist on, or would result from the occurrence of, the Amendment No. 20 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect be entitled to the Vølund Projects located at [***] including but not limited to the enforce such terms directly against such non-Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;parties.
(iii) a certificate of Any and all agreements, instruments and documents required by the secretary or assistant secretary of each of Lender to effectuate and implement the terms hereof, the Loan Parties that are Domestic Subsidiaries certifying Agreement and confirming that the Other Documents (i) attached thereto is a trueduly executed, correct and complete copy of resolutions duly adopted where appropriate, by the board of directors Borrowers and such other parties, as applicable);
(or similar governing bodyiv) of each such Loan Party, authorizing Evidence that the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a partythis Agreement by each Borrower has been duly authorized by all necessary action, and that such resolutions have not been amended, rescinded no amendment or otherwise modified and are in full force and effect in other modification to the form adopted; (ii) a true, correct and complete copy of the articles or certificate of incorporation or certificate bylaws of formation any Borrower has been made since August 14, 2002 and that such documents (or in the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was form previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iiiLender) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organizationeffect;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory Payment to the Administrative Agent Lender a forbearance and amendment fee in an amount equal to Twenty-Five Thousand and 00/100 Dollars (which opinions shall also retroactively cover the above described scope with respect to Amendment $25,000); and
(vi) Payment of all fees and expenses of Blank Rome ▇▇. ▇▇, ▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 LLP, counsel to the extent not previously delivered);
(vi) a solvency certificateLender, executed incurred by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify Lender that the Borrower will be Solvent are outstanding as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, The date on which all of the conditions precedent set forth in Section 7(a) hereof shall have been satisfied or limiting waived is referred to herein as the Borrower’s obligations under, Section 10.04 ("Effective Date."
Appears in 1 contract
Effectiveness; Conditions Precedent. The amendments contained herein shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 4 Effective Date”):
): (a) the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
: (i) counterparts of this Amendment executed by the Loan Parties, the Limited Guarantor, the Administrative Agent, the Tranche A-4 Required Lenders and each Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender Lender; and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 4 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist onexist, or would result from the occurrence of, of the Amendment No. 20 4 Effective Date and (C) that since December 31, 20182020, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Sources: Credit Agreement (Babcock & Wilcox Enterprises, Inc.)
Effectiveness; Conditions Precedent. The amendments contained herein This Agreement, including the Tranche C Commitments, shall only be become effective upon on the satisfaction or waiver of first date on which each of the following conditions precedent have been satisfied or waived (the date of satisfaction or waiversuch date, the “Tenth Amendment No. 20 Effective Date”):
(a) This Agreement and the Waiver shall have been executed on the Signing Date by the Administrative Agent, the Loan Parties and the Signatory Lenders (such execution not to be unreasonably delayed or waived) and the Administrative Agent shall have received counterparts to each which, when taken together, bear the signatures of each of the following documents or instruments in form other parties hereto.
(b) B▇▇▇▇▇▇▇ has arranged for payment on the Tenth Amendment Effective Date of all reasonable and substance acceptable documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents and the funds flow memorandum delivered pursuant to clause (j) below.
(c) The Borrower has delivered to the Administrative Agent:
Agent an Officer’s Certificate of each of Borrower and Holdings dated as of the Tenth Amendment Effective Date certifying (i) counterparts that each of the conditions set forth in this Amendment executed by Section 5 have been satisfied in accordance with the Loan Partiesterms hereof, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate of after giving effect to the chief financial officer or treasurer of waivers set forth in the Borrower certifying that as of Waiver and the Amendment No. 20 Effective Date (A) all of amendments set forth herein, the representations and warranties of each of the Loan Parties set forth in this Amendment the Financing Documents are true and correct in all material respects (or, to the extent any such representation and warranty is modified except where already qualified by a materiality or Material Adverse Effect standardEffect, in which case, such representations and warranties are true and correct in all respects) on and as of such date the Tenth Amendment Effective Date (except unless stated to the extent that such representations and warranties expressly relate solely to an earlier date, in which case they shall be such representations and warranties were true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iii) a certificate after giving effect to the waivers set forth in the Waiver and the amendments set forth herein, no Default or Event of Default has occurred and is continuing as of the secretary or assistant secretary of each Tenth Amendment Effective Date.
(d) As consideration for the amendments set forth herein and the waivers set forth in the Waiver, as of the Loan Parties that are Domestic Subsidiaries certifying and confirming that Tenth Amendment Effective Date, each Lender shall have received the GCEH Warrants as set forth in Section 3.
(e) The Administrative Agent shall have received (i) attached thereto is a truePledge and Security Agreement, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance dated as of the Tenth Amendment Effective Date, by and the Loan Documents to which such Loan Party is a partyamong SusOils, or is to be, a party, Sponsor and that such resolutions have not been amended, rescinded or otherwise modified Collateral Agent and are in full force and effect in the form adopted; (ii) a truePatent Security Agreement, correct and complete copy dated as of the certificate Tenth Amendment Effective Date, by and between SusOils and Collateral Agent, each of incorporation which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received an amendment to the CTCI EPC Agreement, dated on or certificate of formation before the Tenth Amendment Effective Date, executed by the Project Company and CTCI, which shall be in form and substance reasonably satisfactory to the Administrative Agent.
(or g) The Administrative Agent shall have received an operating expense reduction plan, which plan shall include reductions in operating expenses and be in form and substance reasonably satisfactory to the equivalent organizational documentsAdministrative Agent.
(h) of each such Loan Party, together with any amendments thereto, was previously Borrower shall have delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as updates of the date thereof; (iii) a trueFinancial Model, correctthe 2023 Operating Budget, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment Construction Budget and the Loan Documents to which the such Loan Party isConstruction Schedule, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower be in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;.
(viii) The Administrative Agent and the Lenders shall have received an executed copy of a Borrowing Request for Tranche C Loans in an amount equal to $22,000,000.
(j) Borrower shall have delivered to the Administrative Agent a funds flow memorandummemorandum detailing the proposed flow, and use, of the Loan proceeds within three (3) Business Days of the Tenth Amendment Effective Date, in form and substance reasonably acceptable satisfactory to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Sources: Credit Agreement (Global Clean Energy Holdings, Inc.)
Effectiveness; Conditions Precedent. The amendments contained herein Subject to Annex D attached to this Amendment, this Amendment shall only become effective, and each of the M&E Term Loan Facility, the RE-I Term Loan Facility, and the RE-II Term Loan Facility shall be effective funded, in each case, upon the satisfaction or waiver in writing (including pursuant to Annex D hereto) of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 3 Effective Date”):
(a) the Administrative The Agent shall have received each the following, which, to the extent applicable, shall be dated as of the following documents date hereof or instruments in form and substance as of an earlier date acceptable to the Administrative AgentAgent and, to the extent executed by or behalf of a Loan Party, duly executed by a Responsible Officer of such Loan Party:
(i) counterparts of to this Amendment Amendment, duly executed by the Loan PartiesBorrowers, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender Guarantors and each L/C Issuer, in its capacity as L/C IssuerLender;
(ii) a certificate of any Notes, each duly executed by the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (orBorrowers, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respectsNotes were requested two (2) as of such date (except Business Days prior to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the proposed Amendment No. 20 3 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse EffectDate;
(iii) a certificate of the secretary or assistant secretary of each of Intercreditor Agreement, duly executed by the Term Loan Agent and the Agent, and acknowledged by the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan DocumentsParties;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization1970 Group Subordination Agreement, duly executed by the parties thereto;
(v) satisfactory opinions all documents and instruments as shall be requested by the Agent and that are necessary to create and perfect (or to continue to create and perfect, as applicable) the Agent’s security interests in the Collateral (including (i) a Mortgage with respect to each parcel of Specified Phase I Real Estate and Specified Phase II Real Estate, duly executed by each grantor thereunder, together with each related Mortgage Support Document and, to the extent requested by the Agent, fixture filings with respect to Specified M&E, (ii) an English law governed supplemental debenture duly executed by the UK Loan Parties as chargors and the Agent (the “Supplemental English Debenture”) and (iii) an English law governed supplemental share charge and subordinated debt assignment duly executed by each Loan Party which is the holder of shares in the UK Loan Parties’ counselParties (other than UK Loan Parties which are already party to the Supplemental English Debenture as chargors) and the Agent (the “Supplemental English Share Charge”)), including with the priority required by the Credit Agreement and the other Loan Parties’ in-house counselDocuments, regarding due executionand, enforceability if applicable, such documents and non-contravention of law, instruments shall be in proper form and substance for filing (or arrangements reasonably satisfactory to the Administrative Agent (which opinions shall also retroactively cover have been made for the above described scope execution, delivery and/or filing of such documents and instruments substantially concurrently with respect to Amendment ▇▇. ▇▇the effectiveness of this Amendment), ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered)all applicable filing or recording fees or taxes shall be paid concurrently with any required filing;
(vi) a solvency Perfection Certificate, in the form attached as Exhibit E of the Credit Agreement, duly executed by the Borrower (the delivery of which shall be deemed to satisfy the requirement to deliver an updated Perfection Certificate pursuant to Annex B of the Credit Agreement on or prior to July 31, 2023);
(vii) results of customary lien and judgment searches (including with respect to the Specified Phase I Real Estate and Specified Phase II Real Estate) and Intellectual Property searches, with respect to each Loan Party;
(viii) a Notice of Borrowing with respect to the funding of (A) the M&E Term Loan Facility, (B) RE-I Term Loan Facility, (C) the RE-II Term Loan Facility and (D) any Revolving Credit Loans to be made on the date hereof, together with a customary disbursement letter, in each case, duly executed by the Borrower Agent;
(ix) a closing certificate, duly executed by a Responsible Officer of the Borrower Agent;
(x) a financial condition certificate, duly executed by a financial officer of the Borrower Agent, substantially in the form of Exhibit F to the Credit Agreement;
(xi) a Borrowing Base Certificate, dated as of the date hereof and duly executed by the Borrower Agent, prepared on a pro forma basis for the transactions contemplated hereby (the “Amendment No. 3 Transactions”) and with asset values determined as of May 31, 2023, demonstrating that Excess Availability, after giving effect to the Amendment No. 3 Transactions occurring on the date hereof, is at least $10,000,000;
(xii) evidence of customary insurance policies maintained in accordance with Section 7.6 of the Credit Agreement, together with endorsements to such policies naming the Agent as additional insured and lender’s loss payee, as applicable, and providing the Agent with 30 days’ (10 days in the case of non-payment of premium) prior notice of any cancellation of such policies;
(xiii) opinions of counsel for each Loan Party, other than the Dutch Loan Parties and the UK Loan Parties, addressed to the Agent covering such customary matters incident to this Amendment and the Amendment No. 3 Transactions as the Agent may reasonably require, which such counsel is hereby requested by the Borrower Agent on behalf of all the Loan Parties to provide;
(xiv) an opinion of counsel addressed to the Agent covering such matters as to Dutch Loan Parties and Dutch law incident to this Amendment and the Amendment No. 3 Transactions as the Agent may reasonably require;
(xv) an opinion of counsel addressed to the Agent covering such matters as to UK Loan Parties and the laws of England and Wales incident to this Amendment and the Amendment No. 3 Transactions as the Agent may reasonably require;
(xvi) copies of the Governing Documents of each Loan Party (other than the deed of incorporation (oprichtingsakte) of Furmanite B.V.) and a copy of the resolutions of the Governing Body (or similar evidence of authorization) of each Loan Party authorizing the execution and delivery of this Amendment and each other Loan Document to which such Loan Party is or is to be a party and the performance by such Loan Party of its obligations under this Amendment and each other Loan Document to which such Loan Party is or is to be a party, and the transactions contemplated hereby and thereby, attached to a certificate of the Secretary or an Assistant Secretary or other officer, as applicable of such Loan Party, certifying (A) that such copies of the Governing Documents and resolutions of the Governing Body (or similar evidence of authorization) relating to such Loan Party are true, complete and accurate copies thereof, have not been amended or modified since the date of such certificate and are in full force and effect, (B) the incumbency, names and true signatures of the officers (or, as applicable, directors) of such Loan Party authorized to sign the Loan Documents to which it is a party, (C) that attached thereto is a list of all Persons authorized to execute and deliver Notices of Borrowing on behalf of the Borrowers, if applicable, (D) in respect of the UK Loan Parties, the Solvency of that UK Loan Party, and (E) in respect of the UK Loan Parties, that guaranteeing or securing (as appropriate) the Commitments would not cause any guarantee, security or other similar limit binding on the relevant UK Loan Party to be exceeded;
(xvii) with respect to U.S. Loan Parties, a certified copy of a certificate of the Secretary of State of the state of incorporation, organization or formation (or the equivalent Governmental Authority in the jurisdiction of incorporation, organization or formation) of each Loan Party, dated within twenty (20) days of the Amendment No. 3 Effective Date, listing the certificate of incorporation, organization or formation of such Loan Party and each amendment thereto on file in such official’s office and certifying (to the extent such concept exists in such jurisdictions) that (A) such amendments are the only amendments to such certificate of incorporation, organization or formation on file in that office, (B) such Loan Party has paid all franchise taxes to the date of such certificate and (C) such Loan Party is in good standing in that jurisdiction (as applicable);
(xviii) with respect to any Loan Party formed under the laws of Canada or any province or territory thereof, a certificate of status (or equivalent) issued by the governmental authority in the jurisdiction in which such Loan Party is formed, dated within twenty (20) days of the Amendment No. 3 Effective Date;
(xix) evidence that any process agent referred to in Clause 34.2 (Service of process) of the Supplemental English Share Charge, has accepted its appointment;
(xx) a copy of all notices required to be sent under the Supplemental English Debenture and the Supplemental English Share Charge, executed by the relevant parties thereto; and
(xxi) a letter of financial support from Team Inc. addressed to the directors of each UK Loan Party in form and substance reasonably acceptable to the Administrative Agent.
(b) Substantially concurrently with the effectiveness of this Amendment, which, among other things, shall certify that the Borrower will be Solvent as Agent shall have received true, correct and complete copies of the Term Loan Agreement and each other material Term Loan Document, in each case duly executed by the parties thereto.
(c) Substantially concurrently with the effectiveness of this Amendment and the funding of each of the M&E Term Loan Facility, RE-I Term Loan Facility and the RE-II Term Loan Facility on the date hereof;
(vii) a funds flow memorandum, in form all existing Indebtedness of the Borrower Agent and substance reasonably acceptable to its Subsidiaries outstanding on the Administrative Agent, detailing date hereof under the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing Agreement (as defined in the Refinancing Term Sheet)Existing Credit Agreement) will be satisfied in full and all commitments to lend and guarantees and security interests (if any) in connection therewith will be terminated (all such repayments and terminations, the “Atlantic Park Refinancing”), structured as with the Atlantic Park Refinancing to be funded solely from proceeds of (x) the M&E Term Loan Facility, RE-I Term Loan Facility and the RE-II Term Loan Facility and (y) Revolving Credit Loans (provided that the aggregate principal amount of the Revolving Credit Loans to be made available on the date hereof in connection with the Amendment No. 3 Transactions shall not exceed $10,000,000).
(d) The Borrowers shall have paid (i) all Lender Group Expenses required to be paid or reimbursed on the Amendment No. 3 Effective Date to the extent invoiced at least one (1) Business Day prior to the proposed Amendment No. 3 Effective Date (it being understood that all other such fees and Lender Group Expenses shall be paid after the Amendment No. 3 Effective Date in accordance with the terms of the Credit Agreement) and (iii) any fees due and payable to the Agent or the Lenders under the fee letter among the Borrower Agent and the Agent relating to the Amendment No. 3 Transactions that are required to be paid on the Amendment No. 3 Effective Date (which amounts may, at your option, be offset against the proceeds of the M&E Term Loan Facility, RE-I Term Loan Facility and the RE-II Term Loan Facility).
(e) Each of the representations and warranties made by the Borrower Agent (on behalf of itself and the other Loan Parties) in Section 3 hereof shall be true and correct. Without limiting the generality of the provisions of Section 11.3(b) (No Obligation of Agent) of the Credit Agreement, for purposes of determining compliance with the conditions precedent set forth in this Section 2, each Lender, to the Refinancing Term Sheet.
(b) without prejudice extent such Person has signed this Amendment, shall be deemed to have consented to, approved or limiting accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to such Person, unless the Borrower’s obligations under, Section 10.04 (Agent shall have received notice from such Person prior to the date hereof specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Team Inc)
Effectiveness; Conditions Precedent. The amendments contained herein shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 7 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) counterparts of this Amendment executed by the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, Parties and the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(ii) such documentation and other information as has been reasonably requested by the Administrative Agent with respect to Orion Sale and the Indian JV Sale;
(iii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 7 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist onexist, or would result from the occurrence of, of the Amendment No. 20 7 Effective Date and (C) that since December 31, 20182017, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;and
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as after giving effect to the consummation of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent Orion Sale and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans Indian JV Sale on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheeta pro forma basis.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Sources: Credit Agreement (Babcock & Wilcox Enterprises, Inc.)
Effectiveness; Conditions Precedent. The amendments contained herein shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 13 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) counterparts of this Amendment executed by the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, and the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 13 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 13 Effective Date and (C) that since December 31, 20182017, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;; and
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Sources: Credit Agreement (Babcock & Wilcox Enterprises, Inc.)
Effectiveness; Conditions Precedent. The This Agreement and the amendments contained to the Credit Agreement set forth herein shall only be become effective upon at the satisfaction or waiver of time (the “Second Amendment Effective Date”) when each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 Effective Date”):has been satisfied:
(a) the The Administrative Agent shall have received each of the following documents or instruments in form and substance reasonably acceptable to the Administrative Agent:
(i) original counterparts of this Amendment Agreement, duly executed by the Loan PartiesBorrowers, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender Guarantor and each L/C Issuer, in its capacity as L/C IssuerLender;
(ii) 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 certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 Effective Date (A) all of the representations and warranties Responsible Officer in connection with this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse EffectAgreement;
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is duly organized or formed and is validly existing and existing, in good standing and qualified to engage in business in each jurisdiction where its jurisdiction ownership, lease or operation of organizationproperties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
(iv) UCC search results showing only acceptable liens (or arrangements satisfactory to the Administrative Agent shall have been made to remove any unacceptable liens promptly after the Second Amendment Effective Date);
(v) satisfactory opinions a certificate signed by a Responsible Officer of each of the Loan Parties’ counselCompany and FRI certifying (A) that the conditions specified in this Section 4 have been satisfied, including (B) that there has been no event or circumstance since December 31, 2018 that has had or could be reasonably expected to have, either individually or in the Loan Parties’ in-house counselaggregate, regarding due executiona Material Adverse Effect, enforceability and non-contravention of law, in form and substance satisfactory (C) as to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇absence of any action, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 suit, investigation or proceeding pending, or to the extent not previously delivered)knowledge of the Company or FRI, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect;
(vi) a solvency certificate, executed by duly completed Compliance Certificate demonstrating a Responsible Officer Consolidated Current Ratio of the Borrower in form not less than 1.180 to 1.000 and substance reasonably acceptable a Fixed Charge Coverage Ratio of not less than 1.250 to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent 1.000 as of the date hereof;month most recently ended prior to the Second Amendment Effective Date for which a Compliance Certificate has been provided or is required to be provided under the Credit Agreement
(vii) a funds flow memorandumcertificate signed by the chief executive officer, in form and substance reasonably acceptable president, chief operating officer, chief financial officer, treasurer or chief accounting officer of each Loan Party certifying that each Loan Party is Solvent, after giving effect to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowingthis Agreement;
(viii) Evidence of insurance maintained by the Loan Parties and satisfying the requirements of the Credit Agreement, which evidence shall include insurance certificates, evidence that the Administrative Agent (for itself and for the benefit of itself and the Lenders) is named as additional insured, and (in the case of property insurance) a duly executed copy lender’s loss payee rider satisfying the requirements of a backstop financing commitment letterthe Credit Agreement; and
(ix) such other documents, between instruments, opinions, certifications, undertakings, further assurances and other matters as the Administrative Agent shall reasonably request;
(i) Upon the reasonable request of any Lender made at least ten (10) days prior to the Closing Date, the Borrower shall have provided to such Lender, and ▇. ▇▇▇▇▇ FBRsuch Lender shall be reasonably satisfied with, Inc.the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Patriot Act, in form each case at least five (5) Business Days prior to the Closing Date and substance satisfactory (ii) at least five (5) Business Days prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party; and
(c) All fees and expenses payable to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for Lenders (including the Borrower’s receipt fees and expenses of net cash proceeds of at least $200,000,000 counsel to the Administrative Agent) estimated to date shall have been paid in full (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (to final settling of accounts for such fees and expenses).
Appears in 1 contract
Effectiveness; Conditions Precedent. The effectiveness of this Amendment and the amendments contained to the Credit Agreement herein shall only be effective upon provided are subject to the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 Effective Date”):
precedent: (a) the Administrative Agent shall have received each of the following documents or instruments received, in form and substance reasonably acceptable to the Administrative Agent:
(i) , counterparts of this Amendment Amendment, duly executed by the Loan Partieseach Credit Party, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, and the Required Lenders, ; (b) each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 Effective Date (A) all of the representations and warranties set forth in this Amendment are Section 4 above is true and correct in all material respects (or, with respect to the extent any such representation and or warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any taking into account such representation and warranty is modified by a materiality or Material Adverse Effect standard)); (c) after giving effect to this Amendment (including the waivers set forth in Section 3 above), in all respectsas of the Fourth Amendment Effective Date, no Default or Event of Default shall have occurred and be continuing; (d) the Borrower shall have paid to the Administrative Agent, for the pro rata account of each Lender that executes and delivers a signature page to this Amendment by 12:00 Noon Eastern time on Friday, November 3, 2017 (collectively, the “Consenting Lenders”), an amendment fee (the “Amendment Fee”) equal to 0.075% of the sum of (i) the aggregate Revolving Commitments (whether or not drawn or used) of the Consenting Lenders as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; date plus (ii) a true, correct and complete copy the aggregate Term Loans of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect Consenting Lenders as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereofdate; and (ive) attached thereto is a true, correct all fees and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory expenses payable to the Administrative Agent (which opinions shall also retroactively cover including the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ fees and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer expenses of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory counsel to the Administrative Agent and to the Required Lenders, which fully backstops additional refinancing for extent invoiced prior to the Borrower’s receipt of net cash proceeds of at least $200,000,000 date hereof) shall have been paid in full (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (to final settling of accounts for such fees and expenses).
Appears in 1 contract
Sources: Credit Agreement (Ebix Inc)
Effectiveness; Conditions Precedent. The amendments contained herein shall only be effective upon effectiveness of this Amendment, the waivers provided in Section 1 hereof and the amendment to the Credit Agreement provided in Section 2 hereof are all subject to the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 Effective Date”):precedent:
(a) Receipt by the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) counterparts of this Amendment Amendment, duly executed by the Loan PartiesBorrower, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, Agent and the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(iib) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified Receipt by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed Compliance Certificate signed by a Responsible Officer of the Borrower for the fiscal year ended September 24, 2010 demonstrating that the Borrower is in form pro forma compliance with Sections 7.11(a), (b) and substance reasonably acceptable (c) and Section 7.15 of the Credit Agreement after giving effect to this Amendment;
(c) The Borrower shall have paid to the Administrative AgentAgent for the account of each Lender party hereto an amendment fee in an amount equal to 0.25% times such Lender’s Commitment after giving effect hereto, whichwhich fees shall be deemed fully earned and due on the effective date hereof and shall be nonrefundable;
(d) Payment of (i) all out of pocket fees and expenses of counsel to the Administrative Agent incurred on or before the date hereof in connection with the revolving credit facility, among including without limitation, those fees and expenses related to the execution and delivery of this Amendment, to the extent invoiced prior to the date hereof; and (ii) all other thingsfees agreed to be paid; and
(e) Such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Required Lenders may reasonably require. Upon satisfaction of the conditions set forth in this Section 3, this Amendment shall certify that the Borrower will be Solvent effective as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Effectiveness; Conditions Precedent. The amendments contained herein This Amendment shall only be become effective upon the satisfaction or waiver of each of the following conditions precedent (precedent, only if the date Agent receives each of satisfaction the following on or waiverbefore August 31, 1998, each in form and substance satisfactory to the “Amendment No. 20 Effective Date”):Agent and the Collateral Agent:
(a) the Administrative Agent shall have received counterparts of this Amendment, duly executed by each of the following documents or instruments in form Credit Parties, the Issuing Bank, the Agent, the collateral Agent and substance acceptable the Lenders;
(b) Certified copies of the resolutions of the respective Board of Directors of the Guarantor, Central and Coating approving this Amendment and the transactions contemplated hereby.
(c) An opinion of ▇▇▇▇▇▇ and ▇▇▇▇▇, counsel for the Guarantor, to the Administrative Agent:effect that the transactions contemplated hereby do not conflict with or constitute a default under any of the Senior Note Documents.
(d) Evidence that the transactions contemplated by the Tesa Purchase Agreement have closed (or will close contemporaneously with the effectiveness of this Amendment).
(e) A certificate signed by a duly authorized officer of the Guarantor certifying that (i) counterparts of this Amendment executed by the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 Effective Date (A) all of the representations and warranties contained in this Amendment Section 4 hereof are true and correct in all material respects (or, to on and as of the extent any date of such representation certificate as though made on and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date, (ii) the representations and warranties contained in Section 6.1 of the Credit Agreement are true and correct on and as of the date (of such certificate as though made on and as of such date, except to the extent that such representations and warranties expressly relate solely to an earlier date, date (in which case they such representations and warranties shall be have been true and correct in all material respects (or, to the extent any such representation on and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (Biii) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 Effective Date Event of Default has occurred and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; continuing and (iv) attached thereto is a true, correct and complete list no holder of names, offices and true signatures any Indebtedness of Electrical Tape or any of its Subsidiaries has or will have any recourse to any of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each assets of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention Guarantor or any of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope its Restricted Subsidiaries with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheetsuch Indebtedness.
(bf) without prejudice toRevolving Notes, or limiting substantially in the Borrower’s obligations underform of Exhibit A, Section 10.04 duly executed by Central in favor of each Lender.
(g) Revolving Notes, substantially in the form of Exhibit B, duly executed by Coating in favor of each Lender.
(h) Revolving Notes, substantially in the form of Exhibit C, duly executed by SCM in favor of each Lender.
(i) Revolving Notes, substantially in the form of Exhibit D, duly executed by Entoleter in favor of each Lender.
Appears in 1 contract
Effectiveness; Conditions Precedent. The amendments contained herein This Amendment, and the 2022 Commitment Increase provided in Section 1 hereof, shall only be become effective upon as of the satisfaction or waiver of each of date on which the following conditions precedent are satisfied or waived (the date of satisfaction or waiver, the “Amendment No. 20 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments received, in form and substance acceptable reasonably satisfactory to the Administrative Agent:
(i) counterparts , at least one fully executed copy of this Amendment Amendment, duly executed by each of the Loan PartiesBorrowers, the Administrative Agent, Agent and the Tranche A-4 Term Loan Increasing Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(iib) the Company shall have delivered to the Administrative Agent a certificate of the chief financial officer or treasurer of the Borrower certifying that each Loan Party dated as of the Amendment No. 20 Effective Date signed by a Responsible Officer of such Loan Party (A) all certifying and attaching the resolutions adopted by such Loan Party approving or consenting to the 2022 Commitment Increase, and (B) in the case of the Company, certifying that, before and after giving effect to such increase, (1) the representations and warranties contained in this Amendment Article V of the Credit Agreement and the other Loan Documents are true and correct in all material respects (or, to the extent any such representation on and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (the Effective Date, except to the extent that such representations and warranties expressly relate specifically refer to an earlier date, in which case they shall be are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date, except that the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, and (B2) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effectexists;
(iiic) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered at least five days prior to the Administrative Agent on or Effective Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered a Beneficial Ownership Certification in relation to such Borrower to each Lender that so requests at least 10 days prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan DocumentsEffective Date;
(ivd) upon the reasonable request of any Lender made at least 10 days prior to the Effective Date, the Borrowers shall have provided to such documents Lender the documentation and certifications as other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Administrative Agent may reasonably require PATRIOT Act, in each case at least five days prior to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organizationthe Effective Date;
(ve) satisfactory opinions on or before the Effective Date, to the Person to whom such fees are owing, any fees required to be paid pursuant to this Amendment or the Engagement Letter dated as of each November 8, 2022 among the Company and BofA Securities, Inc.; and
(f) the Company shall have paid all reasonable and documented fees, charges and disbursements of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory counsel to the Administrative Agent (which opinions shall also retroactively cover directly to such counsel if requested by the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 Administrative Agent) to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form required to be paid pursuant to Section 10.04 and substance reasonably acceptable invoiced at least one Business Day prior to the Administrative Agent, which, among other things, shall certify Effective Date (provided that the Borrower will be Solvent as Company shall remain liable for any additional reasonable and documented fees and expenses of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory such counsel to the Administrative Agent and in accordance with Section 10.04). Without limiting the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date generality of the Refinancing (as defined provisions in Article IX of the Refinancing Term Sheet))Credit Agreement, structured as set forth for purposes of determining compliance with the conditions specified in the Refinancing Term Sheet.
(b) without prejudice this Section, each Lender that has signed this Amendment shall be deemed to have consented to, approved or limiting accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Borrower’s obligations under, Section 10.04 (Administrative Agent shall have received notice from such Lender prior to the date hereof specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Avnet Inc)
Effectiveness; Conditions Precedent. The This Amendment and the amendments contained herein included in Section 2, including the Upsized Tranche B Commitments, shall only be become effective upon on the satisfaction or waiver of first date on which each of the following conditions precedent have been satisfied or waived (the date of satisfaction or waiversuch date, the “Amendment No. 20 Effective Date”):
(a) This Amendment shall have been executed by the Administrative Agent, the Loan Parties and the Signatory Lenders and the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the following documents or instruments in form and substance acceptable to the Administrative Agent:other parties hereto.
(ib) counterparts No Default or Event of this Amendment executed by the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender Default shall have occurred and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that be continuing as of the Amendment No. 20 Effective Date Date.
(Ac) all of the The representations and warranties of each of the Loan Parties set forth in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they Financing Documents shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified except where already qualified by a materiality or Material Adverse Effect standardEffect, in which case, such representations and warranties shall be true and correct in all respects) on and as of the Effective Date (unless stated to relate solely to an earlier date, in which case such representations and warranties were true and correct as of such earlier date), .
(Bd) no Default shall exist on, or would result from Borrower has arranged for payment on the occurrence of, the Amendment No. 20 Effective Date of all reasonable and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect documented out-of-pocket fees and expenses then due and payable pursuant to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;Financing Documents.
(iiie) a certificate The Administrative Agent shall have received an Officer’s Certificate of each Loan Party dated as of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries Effective Date certifying and confirming that (i) attached thereto is a trueeach of the conditions in this Section 4 have been satisfied and (ii) none of the Organizational Documents of the Borrower or Holdings have been amended since the Closing Date, correct and complete in the case of Project Company, since the Tranche A Funding Date.
(f) The Administrative Agent shall have received (i) evidence that an original copy of resolutions duly adopted by an amendment to the board of directors Mortgage (or similar governing body) of each such Loan Partythe “Mortgage Amendment”), authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect substantially in the form adopted; attached hereto as Exhibit B, was sent to the Title Company and (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered date down title endorsement to the Administrative Agent on or prior to April 5Title Policy, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined substantially in the Refinancing Term Sheet)), structured form attached hereto as set forth in the Refinancing Term Sheet.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (Exhibit C.
Appears in 1 contract
Sources: Credit Agreement (Global Clean Energy Holdings, Inc.)
Effectiveness; Conditions Precedent. The This Amendment and the amendments contained herein to the Credit Agreement provided in Section 1 hereof shall only be effective as of the date first written above upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 Effective Date”):precedent:
(a) the Administrative Agent shall have received each counterparts of this Amendment, duly executed by the following documents Borrower, the Joining Lender and the Lenders, which counterparts may be delivered by telefacsimile or instruments in form and substance acceptable other electronic means (including .pdf);
(b) the Borrower shall deliver to the Administrative Agent:
Agent a certificate of each Loan Party dated as of the date hereof signed by a Responsible Officer of such Loan Party (x) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to the Commitment Increase (which, with respect to any such Loan Party, may, if applicable, be the resolutions entered into by such Loan Party in connection with the incurrence of the Obligations on the Closing Date), and (y) in the case of the Borrower, certifying that, before and after giving effect to such Commitment Increase, (i) counterparts of this Amendment executed by the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 Effective Date (A) all of the representations and warranties contained in this Amendment Article V of the Credit Agreement and the other Loan Documents are true and correct in all material respects (or, to the extent any such representation on and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such the date (hereof, except to the extent that such representations and warranties expressly relate specifically refer to an earlier date, in which case they shall be are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date, and except that for purposes hereof, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (Bii) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effectexists;
(iiic) a certificate the Borrower shall prepay any Committed Loans outstanding on the date hereof (and pay any additional amounts required pursuant to Section 3.05 of the secretary or assistant secretary of each of Credit Agreement) to the Loan Parties that are Domestic Subsidiaries certifying and confirming that extent necessary to keep the outstanding Committed Loans ratable with any revised Applicable Percentages arising from any nonratable Commitment Increase; and
(d) (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR& ▇▇▇▇▇ Incorporated (“MLPFS”), Inc.as an Arranger, in form and substance satisfactory shall have received, for the account of the Joining Lender, the Upfront Fee (as defined therein) payable to the Joining Lender pursuant to the letter agreement, dated February 16, 2018, among the Borrower, the Administrative Agent and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the Required Lenders, which fully backstops additional refinancing for “BAML Fee letter”) in an amount equal to the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used same Upfront Fee payable to repay Revolving Credit Loans the other Lenders on the effective date Closing Date based on commitment tier level; (ii) the Administrative Agent shall have received any additional administrative agent fee owing to it pursuant to the BAML Fee Letter as a result of the Refinancing Joining Lender joining the facility; and (as defined iii) all other reasonable fees and expenses incurred or payable in connection with the Refinancing Term Sheet)), structured as set forth execution and delivery of this Amendment (including the reasonable fees and expenses of counsel to the Administrative Agent) that have been requested to be paid on or before the date hereof shall have been paid in the Refinancing Term Sheetfull.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Sources: Credit Agreement (Regis Corp)
Effectiveness; Conditions Precedent. The amendments contained herein This Agreement shall only be become effective upon as of the satisfaction or waiver of each of date hereof when the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 Effective Date”):have been satisfied:
(a) the The Administrative Agent shall have received each of copies of this Agreement duly executed by the following documents or instruments in form Borrower, the Guarantor, the Lenders and substance acceptable to the Administrative Agent:.
(b) The Administrative Agent shall have received: (i) counterparts of this Amendment a Bank Note executed by the Borrower in favor of each Lender that has requested a Bank Note (it being understood that any existing Bank Note executed by the Borrower in favor of such Lender shall be returned by such Lender to the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender Parties in original form or otherwise marked as cancelled and each L/C Issuer, in its capacity as L/C Issuer;
destroyed); (ii) a certificate copy of resolutions of the chief financial officer or treasurer Governing Body of the Borrower certifying that each Loan Party and all other necessary corporate approvals, if any, certified as of the Amendment No. 20 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified date hereof by a materiality or Material Adverse Effect standard, in all respects) as duly authorized officer of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing authorizing, among other things, the execution, delivery and performance by such Loan Party of this Agreement, the Amendment Amended Credit Agreement and the Loan other Related Documents to which such Loan Party it is a party, or is to be, a party, party and that such resolutions have not been amended, rescinded or otherwise modified which are being executed and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; (iii) true and correct copies of all Governmental Approvals, if any, necessary for the Loan Parties to execute, deliver and perform the Related Documents; (iv) attached thereto is evidence that the Loan Parties have received all consents and other approvals from creditors necessary for them to execute, deliver and perform the Related Documents; (v) a true, correct and complete list certificate of names, offices a duly authorized officer of each Loan Party certifying the names and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment this Agreement and the Loan other Related Documents to which the such Loan Party is, it is or is to be, will be a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
party; (ivvi) such documents and certifications as the Administrative Agent may reasonably require to evidence that (A) each Loan Party that are Domestic Subsidiaries that each such Loan Party is duly organized and validly existing and under the laws of its jurisdiction of incorporation or formation, (B) the Borrower is in good standing in the States of Delaware and (C) each other Loan Party is in good standing (to the extent such concept applies) under the laws of its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, incorporation or limiting the Borrower’s obligations under, Section 10.04 (formation; and
Appears in 1 contract
Sources: Credit Agreement (UL Solutions Inc.)
Effectiveness; Conditions Precedent. The amendments contained herein Subject to Annex C attached to this Amendment, this Amendment shall only be become effective upon the satisfaction or waiver in writing (including pursuant to Annex C hereto) of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 5 Effective Date”):
(a) the Administrative The Agent shall have received each the following, which, to the extent applicable, shall be dated as of the following documents date hereof or instruments in form and substance as of an earlier date acceptable to the Administrative AgentAgent and, to the extent executed by or behalf of a Loan Party, duly executed by a Responsible Officer of such Loan Party:
(i) counterparts of to this Amendment Amendment, duly executed by the Loan PartiesBorrowers, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender Guarantors and each L/C Issuer, in its capacity as L/C IssuerLender;
(ii) a certificate of all documents and instruments as shall be requested by the chief financial officer Agent and that are necessary to create and perfect (or treasurer of to continue to create and perfect, as applicable) the Borrower certifying that as of Agent’s security interests in the Amendment No. 20 Effective Date Collateral, with the priority required by the Credit Agreement and the other Loan Documents, and, if applicable, such documents and instruments shall be in proper form for filing (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, or arrangements reasonably satisfactory to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standardAgent shall have been made for the execution, in all respects) as delivery and/or filing of such date (except to documents and instruments substantially concurrently with the extent that such representations effectiveness of this Amendment), and warranties expressly relate to an earlier date, in which case they all applicable filing or recording fees or taxes shall be true and correct in all material respects (or, to the extent paid concurrently with any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effectrequired filing;
(iii) a certificate results of the secretary or assistant secretary of customary lien and judgment searches and Intellectual Property searches, with respect to each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;12289736v6
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency closing certificate, duly executed by a Responsible Officer of the Borrower Agent;
(v) a financial condition certificate, duly executed by a financial officer of the Borrower Agent, substantially in the form and substance reasonably acceptable of Exhibit F to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as Credit Agreement;
(vi) evidence of customary insurance policies maintained in accordance with Section 7.6 of the date hereofCredit Agreement;
(vii) a funds flow memorandumopinions of counsel for each Loan Party, in form other than the Dutch Loan Parties and substance reasonably acceptable the UK Loan Parties, addressed to the Administrative AgentAgent covering such customary matters incident to this Amendment and the transactions contemplated hereby (the “Amendment No. 5 Transactions”) as the Agent may reasonably require, detailing which such counsel is hereby requested by the flow Borrower Agent on behalf of funds in respect all the Loan Parties to the Tranche A-4 Term Loan Borrowingprovide;
(viii) an opinion of counsel addressed to the Agent covering such matters as to Dutch Loan Parties and Dutch law incident to this Amendment and the Amendment No. 5 Transactions as the Agent may reasonably require;
(ix) an opinion of counsel addressed to the Agent covering such matters as to UK Loan Parties and the laws of England and Wales incident to this Amendment and the Amendment No. 5 Transactions as the Agent may reasonably require;
(x) copies of the Governing Documents of each Loan Party (other than the deed of incorporation (oprichtingsakte) of Furmanite B.V.) and a duly executed copy of the resolutions of the Governing Body (or similar evidence of authorization) of each Loan Party authorizing the execution and delivery of this Amendment and each other Loan Document to which such Loan Party is or is to be a party and the performance by such Loan Party of its obligations under this Amendment and each other Loan Document to which such Loan Party is or is to be a party, and the transactions contemplated hereby and thereby, attached to a certificate of the Secretary or an Assistant Secretary or other officer, as applicable of such Loan Party, certifying (A) that such copies of the Governing Documents and resolutions of the Governing Body (or similar evidence of authorization) relating to such Loan Party are true, complete and accurate copies thereof, have not been amended or modified since the date of such certificate and are in full force and effect, (B) the incumbency, names and true signatures of the officers (or, as applicable, directors) of such Loan Party authorized to sign the Loan Documents to which it is a party, (C) that attached thereto 12289736v6 is a list of all Persons authorized to execute and deliver Notices of Borrowing on behalf of the Borrowers, if applicable, (D) in respect of the UK Loan Parties, the Solvency of that UK Loan Party, and (E) in respect of the UK Loan Parties, that guaranteeing or securing (as appropriate) the Commitments would not cause any guarantee, security or other similar limit binding on the relevant UK Loan Party to be exceeded;
(xi) with respect to U.S. Loan Parties, a certified copy of a backstop financing commitment lettercertificate of the Secretary of State of the state of incorporation, between Borrower organization or formation (or the equivalent Governmental Authority in the jurisdiction of incorporation, organization or formation) of each Loan Party, dated within twenty (20) days of the Amendment No. 5 Effective Date, listing the certificate of incorporation, organization or formation of such Loan Party and ▇. ▇▇▇▇▇ FBR, Inc., each amendment thereto on file in form such official’s office and substance satisfactory certifying (to the Administrative Agent and extent such concept exists in such jurisdictions) that (A) such amendments are the Required Lendersonly amendments to such certificate of incorporation, which fully backstops additional refinancing for organization or formation on file in that office, (B) such Loan Party has paid all franchise taxes to the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing such certificate and (C) such Loan Party is in good standing in that jurisdiction (as defined applicable);
(xii) with respect to any Loan Party formed under the laws of Canada or any province or territory thereof, a certificate of status (or equivalent) issued by the governmental authority in the Refinancing Term Sheet))jurisdiction in which such Loan Party is formed, structured as set forth in dated within twenty (20) days of the Refinancing Term Sheet.Amendment No. 5 Effective Date;
(b) without prejudice The Borrowers shall have paid (i) all Lender Group Expenses required to be paid or reimbursed on the Amendment No. 5 Effective Date to the extent invoiced at least one (1) Business Day prior to the proposed Amendment No. 5 Effective Date (it being understood that all other such fees and Lender Group Expenses shall be paid after the Amendment No. 5 Effective Date in accordance with the terms of the Credit Agreement) and (ii) any fees due and payable to the Agent or the Lenders under the fee letter among the Borrower Agent and the Agent relating to the Amendment No. 5 Transactions that are required to be paid on the Amendment No. 5 Effective Date.
(c) Each of the representations and warranties made by the Borrower Agent (on behalf of itself and the other Loan Parties) in Section 3 hereof shall be true and correct. Without limiting the generality of the provisions of Section 11.3(b) (No Obligation of Agent) of the Credit Agreement, for purposes of determining compliance with the conditions precedent set forth in this Section 2, each Lender, to the extent such Person 12289736v6 has signed this Amendment, shall be deemed to have consented to, approved or limiting accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to such Person, unless the Borrower’s obligations under, Section 10.04 (Agent shall have received notice from such Person prior to the date hereof specifying its objection thereto.
Appears in 1 contract
Sources: Credit Agreement (Team Inc)
Effectiveness; Conditions Precedent. The amendments contained herein This Amendment shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (on the date of satisfaction or waiveron which all the conditions set forth in this Section 2 have been satisfied (such date, the “Second Amendment No. 20 Effective Date”):
(a) receipt by the Administrative Agent shall have received each of the following documents or instruments following, each in form and substance acceptable reasonably satisfactory to each of the Administrative Agent:
(i) executed counterparts of this Amendment Amendment, each executed by the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender Borrower and each L/C Issuer, in its capacity as L/C IssuerLender;
(ii) a certificate favorable opinions of legal counsel to the chief financial officer or treasurer of Borrower, addressed to the Borrower certifying that Administrative Agent and each Lender, dated as of the Second Amendment No. 20 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse EffectDate;
(iii) a certificate (A) copies of the secretary Organization Documents of the Borrower certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or assistant secretary other jurisdiction of its incorporation or organization, where applicable, and certified by a Responsible Officer of the Borrower to be true and correct as of the Second Amendment Effective Date; (B) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is Responsible Officer thereof authorized to act as a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Responsible Officer in connection with this Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the other Loan Documents to which the such Loan Party is, or Borrower is to be, a party party; and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(ivC) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party the Borrower is duly organized or formed, and is validly existing and existing, in good standing and qualified to engage in business in its jurisdiction state of organizationorganization or formation;
(iv) evidence that the Administrative Agent, on behalf of the Lenders, shall have a perfected security interest in the additional railcars to be added as Pledged Railcars as set forth on Annex B.
(v) satisfactory opinions a pro forma Borrowing Base Certificate as of each June 30, 2022, reflecting the addition of all additional railcars set forth on Annex B to be added as Pledged Railcars in connection with the execution of this Amendment, which shall demonstrate that the Borrowing Base equals or exceeds $ 315,294,117.65; and
(vi) evidence that all insurance required to be maintained pursuant to the Loan Parties’ counselDocuments has been obtained and is in effect.
(b) the Administrative Agent and the Lenders shall have received (i) at least five Business Days prior to the Second Amendment Effective Date, including all documentation and other information that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Loan Parties’ in-house counselUSA PATRIOT Act and (ii) at least five Business Days prior to the Second Amendment Effective Date, regarding due executionif the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, enforceability a Beneficial Ownership Certification in relation to the Borrower;
(c) the Administrative Agent and non-contravention the Lenders shall have received all accrued fees and expenses required to be paid on the Second Amendment Effective Date; and
(d) the Borrower shall have paid all fees, charges and disbursements of law, in form and substance satisfactory counsel to the Administrative Agent (which opinions shall also retroactively cover directly to such counsel if requested by the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 Administrative Agent) to the extent invoiced prior to or on the Second Amendment Effective Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not previously delivered);
(vi) thereafter preclude a solvency certificate, executed by a Responsible Officer final settling of accounts between the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Effectiveness; Conditions Precedent. The effectiveness of this Agreement and the amendments contained to the Credit Agreement herein shall only be effective upon provided are subject to the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 Effective Date”):precedent:
(a) the The Administrative Agent shall have received each of the following documents or instruments in form and substance reasonably acceptable to the Administrative Agent:
(i) counterparts an original counterpart of this Amendment Agreement, duly executed by the Loan PartiesBorrower, the Company, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, each other Guarantor and the Required Lenders; and
(ii) (i) a certificate of each Loan Party dated as of the date hereof signed by a Responsible Officer, each Revolving Credit Lender secretary or assistant secretary of such Loan Party certifying and each L/C Issuerattaching the resolutions adopted by such Loan Party approving or consenting to the terms of this Agreement, in its capacity as L/C Issuer;
and (ii) a certificate of the chief financial officer or treasurer Borrower, signed by a Responsible Officer, certifying that, before and after giving effect to the amendments being made pursuant to this Agreement, (A) the representations and warranties contained in Article V of the Borrower certifying that Credit Agreement and the other Loan Documents are true and correct on and as of the Amendment No. 20 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (orDate, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate specifically refer to an earlier date, in which case they shall be are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), and (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effectexists;
(iii) a certificate of The Administrative Agent shall have received an amendment modifying the secretary or assistant secretary of Senior Secured Leverage Ratio and Total Leverage Ratio covenants in that certain Seventh Amended and Restated Revolving Credit Agreement dated effective March 19, 2007 among the Company, each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments Company party thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, lenders party thereto and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (JPMorgan Chase Bank,
Appears in 1 contract
Effectiveness; Conditions Precedent. The amendments contained herein shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 9 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) counterparts of this Amendment executed by the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, Lenders and the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 9 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist onexist, or would result from the occurrence of, of the Amendment No. 20 9 Effective Date and (C) that since December 31, 20182017, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, counsels regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described and consistent in scope with respect the prior opinion delivered by the Loan Parties’ counsel to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and the Administrative Agent in connection with Amendment No. 19 to 8) and any other opinion from local counsel reasonably requested by the extent not previously delivered)Administrative Agent;
(viiv) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form hereof and substance reasonably acceptable after giving effect to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date each of the Refinancing consummation of the Orion Sale (as defined in the Refinancing Term Sheet)Amendment No. 7), structured Project Burn (as set forth defined in Amendment No. 8) and the Barberton Sale, individually and in the Refinancing Term Sheetaggregate, on a pro forma basis; and
(v) such documentation and other information as has been reasonably requested by the Administrative Agent with respect to the Barberton Sale.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Sources: Credit Agreement (Babcock & Wilcox Enterprises, Inc.)
Effectiveness; Conditions Precedent. The amendments contained herein shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 14 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) counterparts of this Amendment executed by the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, and the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 14 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 14 Effective Date and (C) that since December 31, 20182017, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;; and
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each opinion of the Loan Parties’ counselNew York counsel regarding, including the Loan Parties’ in-house counselamong other items, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (and consistent in scope with the prior opinion delivered by the Loan Parties’ New York counsel to the Administrative Agent in connection with Amendment No. 12, which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered13);
(viiv) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Sources: Credit Agreement (Babcock & Wilcox Enterprises, Inc.)
Effectiveness; Conditions Precedent. The amendments contained herein shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 5 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) counterparts of this Amendment executed by the Loan Parties, the Limited Guarantor, the Administrative Agent, the Tranche A-4 Required Lenders and each Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C IssuerLender;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 5 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist onexist, or would result from the occurrence of, of the Amendment No. 20 5 Effective Date and (C) that since December 31, 20182020, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;; and
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
hereof and after the issuance of Preferred Stock permitted under the Credit Agreement (viias amended hereby) on a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans pro forma basis as if issued on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term SheetAmendment No. 5 Effective Date.
(b) the Administrative Agent shall have received on account of each Revolving Credit Lender who consented to this Amendment, the Work Fee;
(c) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Sources: Credit Agreement (Babcock & Wilcox Enterprises, Inc.)
Effectiveness; Conditions Precedent. The This Amendment and the amendments contained to the Credit Agreement herein provided shall only be become effective (the “Amendment Effective Date”) upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 Effective Date”):precedent:
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agentreceived:
(i) counterparts of this Amendment Amendment, duly executed by the Loan Partieseach Borrower, the Bank of America, as Administrative Agent, the Tranche A-4 Term Loan LendersRevolving Swing Line Lender, the Tranche A-5 Term Loan LendersNew Vehicle Swing Line Lender, the Required Lenders, each Revolving Credit Used Vehicle Swing Line Lender and each L/C Issuer, in each Guarantor, each Joining Lender and the Required Lenders (including each Existing Lender which is increasing its capacity as L/C Issueroverall Commitment pursuant to Section 2.23 of the Credit Agreement);
(ii) a certificate such Notes as may be requested by the Joining Lenders;
(iii) evidence of the chief financial officer or treasurer authority and capacity of the Borrower certifying Company and the other Loan Parties to execute, deliver and perform its obligations under the Loan Documents as amended hereby, including, (x) a true and complete copy of resolutions approving the amendments contemplated hereby, (y) a certification, executed by each Loan Party, that the Organization Documents of such Loan Party have not been amended or otherwise modified since the effective date of the Credit Agreement, or the effective date of the Joinder Agreement pursuant to which such Loan Party became a party to the Credit Agreement and/or the other Loan Documents, as applicable, or in the alternative, attaching true and complete copies of all amendments and modifications thereto and (z) certification of the Company that, before and after giving effect to the Incremental Commitments, (A) the representations and warranties contained in Article V of the Credit Agreement and the other Loan Documents are true and correct on and as of the Amendment No. 20 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (orDate, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate specifically refer to an earlier date, in which case they shall be are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date, and except that, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit Agreement, and (B) no Default shall exist onexists; and
(iv) such other documents, or would result from instruments, opinions, certifications, undertakings, further assurances and other matters as the occurrence ofAdministrative Agent, the Amendment No. 20 Effective Date Revolving Swing Line Lender, the New Vehicle Swing Line Lender, the Used Vehicle Swing Line Lender, the L/C Issuer or any Lender shall reasonably request;
(b) the Company shall have paid the fees in the amounts and (C) that since December 31at the times specified in the letter agreement, 2018dated as of April 21, there have not occurred any facts2008, circumstancesamong the Company, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into Administrative Agent and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] BAS (the “Vølund Settlement AgreementsAmendment Fee Letter”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, (including payment of a Material Adverse Effect;
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered fee to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) behalf of each Joining Lender and each Existing Lender increasing its Commitment equal to 0.05% times such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent Lender’s final Incremental Commitment as set forth on or prior to April 5, 2019 or is Schedule 2.01 attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereofhereto); and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;and
(ivc) such documents all fees and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory expenses payable to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for Lenders (including the Borrower’s receipt fees and expenses of net cash proceeds of at least $200,000,000 counsel to the Administrative Agent) to the extent invoiced on or prior to the Amendment Effective Date shall have been paid in full (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (to final settling of accounts for such fees and expenses).
Appears in 1 contract
Effectiveness; Conditions Precedent. The amendments contained herein shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 1 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance reasonably acceptable to the Administrative Agent:
(i) counterparts of this Amendment executed by the Loan PartiesParties and the requisite Lenders (including, without limitation, the Administrative Agent, the Tranche A-4 Term Loan Incremental Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer);
(ii) a Note executed by the Borrower in favor of each Incremental Lender requesting a Note;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of 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 Amendment;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and that each Loan Party is validly existing and in good standing in its jurisdiction of organization (which may be bring-down certificates with respect to such matters delivered on the Closing Date of the Credit Agreement);
(v) a favorable opinion of (A) ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel to the Loan Parties and (B) ▇▇▇▇▇ ▇▇▇▇▇▇▇, General Counsel of the Loan Parties, in each case addressed to the Administrative Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent and the Lenders and addressing such matters concerning the Borrower, this Amendment and any other Loan Document to be provided on or prior to the Amendment No. 1 Effective Date as the Incremental Lenders and/or the Required Lenders may reasonably request; 80987238_3
(vi) such documentation and other information as has been reasonably requested by the Administrative Agent or any Lender prior to the Amendment No. 1 Effective Date with respect to the Loan Parties in connection with the provisions of Section 6.10 hereof; and
(vii) projections prepared by management of the Borrower (prepared in good faith based upon assumptions that the Borrower believes to be reasonable at the time made and at the time such projections are so furnished to the Administrative Agent and Lenders) of balance sheets, income statements and cashflow statements of the Borrower and its subsidiaries, giving effect to the transactions contemplated by this Amendment and the proposed acquisition of GE Hitachi Nuclear Energy Canada Inc., which will be quarterly for the first year after the Amendment No. 1 Effective Date and annually thereafter for the term of the Facilities;
(viii) a certificate of the chief financial officer, chief accounting officer or treasurer of the Borrower certifying that as of the Amendment No. 20 1 Effective Date (A) all of the representations and warranties in this Amendment the Credit Agreement and the other Loan Documents are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), ) and (B) no Default shall exist onexist, or would result from the occurrence of, of the Amendment No. 20 1 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;Date; and
(iiib) a certificate all accrued reasonable out-of-pocket costs and expenses of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying MLPFS and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions including the reasonable fees and expenses of counsel (including each local counsel) for the Administrative Agent) shall also retroactively cover have been paid to the above described scope extent that the Borrower has received an invoice therefor (with respect reasonable and customary supporting documentation) at least two Business Days prior to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and the Amendment No. 19 1 Effective Date (without prejudice to any post-closing settlement of such fees, costs and expenses to the extent not previously deliveredso invoiced);
(vi) a solvency certificate, executed and all fees pursuant to the engagement letter agreement dated as of August 16, 2016, by a Responsible Officer of and between the Borrower in form and substance reasonably acceptable to MLPFS or the Administrative Agent, which, among other things, Credit Agreement shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheethave been paid.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Effectiveness; Conditions Precedent. The effectiveness of this Amendment and the amendments contained to the Credit Agreement herein shall only be effective upon provided are subject to the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiversuch satisfaction, the “Amendment No. 20 Effective Date”):
(a) receipt by the Administrative Agent shall have received of at least one fully executed copy of this Amendment, executed by the Parent Borrower, each other Increase Credit Party, each 2020 Increase Lender and the Administrative Agent;
(b) receipt by the Administrative Agent from the Parent Borrower of the following documents or instruments evidence demonstrating, in form and substance acceptable reasonably satisfactory to the Administrative Agent:
, that (i) counterparts the Parent Borrower is in compliance with the financial covenants set forth in Section 9.1 of the Credit Agreement, in each case based on the financial statements most recently delivered pursuant to Section 7.1(a)(i) or 7.1(a)(ii), as applicable, on a pro forma basis immediately after giving effect to the effectiveness of this Amendment executed on the Effective Date, the borrowing of Term Loans pursuant to the 2020 Term Loan Increase, and any Acquisition (including any or all of the G4S Acquisitions) occurring on or prior to the Effective Date and all other related transactions occurring on or prior to the Effective Date and (ii) the aggregate principal amount of the 2020 Term Loan Increase is within the Incremental Facilities Limit (and any necessary calculations with respect thereto);
(c) receipt by the Loan PartiesAdministrative Agent of a certificate from a Responsible Officer, in form and substance reasonably satisfactory to the Administrative Agent, to the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
effect that (ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 Effective Date (Ai) all of the representations and warranties contained in Section 4 of this Amendment are true and correct in all material respects (or, except to the extent any such representation and warranty is modified qualified by a materiality or reference to Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier dateEffect, in which case they shall be true and correct in all material respects (orcase, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standardshall be true, correct and complete in all respects); (ii) no Credit Party is in violation of any of the covenants contained in this Amendment, the Credit Agreement and the other Loan Documents; (iii) all governmental and third party approvals necessary or, in the reasonable discretion of the Administrative Agent, advisable in connection with the effectiveness hereof and the financing contemplated hereby shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the effectiveness hereof or the financing contemplated hereby; (iv) there does not exist any judgment, order, injunction or other restraint issued or filed or a hearing seeking injunctive relief or other restraint pending or notified prohibiting the transactions contemplated by this Amendment, the Credit Agreement as of such earlier date)amended by this Amendment and the other Loan Documents or otherwise referred to herein or therein; (v) at least one G4S Acquisition (A) has been consummated prior to, (B) no Default shall exist onis being consummated substantially simultaneously with, or would result from the occurrence of, the Amendment No. 20 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect was previously notified to the Vølund Projects located Administrative Agent and the 2020 Increase Lenders at [***] including but not limited least three Business Days prior to the Borrower or its Subsidiaries’ entry into Effective Date (and performance of its obligations under the settlement agreements with respect Administrative Agent and the 2020 Increase Lenders shall have received such notice) to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effectbe consummated within three Business Days after the Effective Date; and (vi) each of the conditions in this Section 5 has been satisfied or waived (assuming satisfaction of the Administrative Agent where not advised otherwise);
(iiid) receipt by the Administrative Agent of a certificate of the secretary, assistant secretary or assistant secretary general counsel of each Increase Credit Party certifying as to the incumbency and genuineness of the Loan Parties signature of each officer of such Increase Credit Party executing this Amendment and certifying that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of (i) the articles of incorporation or comparable organizational documents, if any, of such Increase Credit Party and all amendments thereto, certified as of a recent date by the appropriate Governmental Authority in its jurisdiction of incorporation for such Increase Credit Party, or, in any relevant case in this clause (i), certification that such documents have not been altered, amended, revoked or otherwise modified since those delivered on or about the First Amendment Effective Date (and each remains in full force and effect), (ii) the bylaws or comparable organizational documents, if any, of such Increase Credit Party as in effect on the date of such certifications, or, in any relevant case, certification that such documents have not been altered, amended, revoked or otherwise modified since those delivered on or about the First Amendment Effective Date (and each remains in full force and effect)), (iii) resolutions duly adopted by the board Board of directors Directors or comparable governing body of such Increase Credit Party authorizing, as applicable, the borrowings contemplated under the 2020 Term Loan Increase (or similar governing bodythe guarantee thereof) of each such Loan Party, authorizing and the execution, delivery and performance of this Amendment, or, in any relevant case (subject to the reasonable satisfaction of the Administrative Agent), certification that the resolutions delivered on or about the First Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions Effective Date have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revokedaltered, amended, rescinded revoked or modified otherwise modified, and each remains in full force and effect as of the date thereof; (iii) a trueeffect, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is certificates as of a true, correct and complete list of names, offices and true signatures recent date of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction or active status, as applicable, of the Increase Credit Parties under the laws of their respective jurisdictions of organization;
(ve) satisfactory the Parent Borrower shall deliver or cause to be delivered opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance reasonably satisfactory to the Administrative Agent of (which opinions shall also retroactively cover i) the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇assistant general counsel of the Parent Borrower and (ii) Hunton ▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBRLLP, Inc.special counsel to the Increase Credit Parties, in form and substance satisfactory each case, addressed to the Administrative Agent and the Required Lenders with respect to such Increase Credit Parties, this Amendment, the Credit Agreement as amended by this Amendment, and such other matters as the Administrative Agent shall reasonably request, and which such opinions shall permit reliance by permitted assigns of each of the Administrative Agent and the Lenders;
(f) delivery to the Administrative Agent and the 2020 Increase Lenders of (i) the quality of earnings report of E&Y with respect to the G4S Acquisitions and (ii) projected financial statements through the Specified Maturity Date on an annual basis for the Parent Borrower and its Subsidiaries after the giving effect to the G4S Acquisitions;
(g) the Parent Borrower shall have paid any accrued and unpaid fees, commissions and out of pocket expenses due hereunder, under the Credit Agreement or under the engagement letter between the Parent Borrower and BofA Securities, Inc. dated as of March 6, 2020 (including, without limitation, reasonable legal fees and out-of-pocket expenses for which invoices have been presented) to the Administrative Agent and 2020 Increase Lenders, which fully backstops additional refinancing for and to any other Person such amount as may be due thereto in connection with the Borrower’s receipt of net cash proceeds of at least $200,000,000 transactions contemplated hereby, including all taxes, fees and other charges in connection therewith;
(inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured h) except as set forth in the Refinancing Term Sheet.Current SEC Reports, as of the Effective Date, there shall be no actions, suits or proceedings pending or, to the knowledge of a Responsible Officer, threatened (i) with respect to this Amendment, the Credit Agreement or any other Loan Document or (ii) which the Administrative Agent or a majority of the 2020 Increase Lenders reasonably believe would reasonably be expected to have a Material Adverse Effect;
(bi) the 2020 Increase Lenders shall have received at least five Business Days in advance of the Effective Date (x) all documentation and other information that is required by regulatory authorities under Anti-Money Laundering Laws, including, without prejudice tolimitation, or limiting the USA Patriot Act and any applicable “know your customer” rules and regulations, to the extent requested in writing at least ten Business Days prior to the Effective Date and (y) with respect to each 2020 Increase Lender that so requests at least fifteen Business Days prior to the Effective Date, if any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower’s obligations under; and
(j) receipt by the Administrative Agent of a Notice of Borrowing from the Parent Borrower with respect to the Term Loans under the 2020 Term Loan Increase on the Effective Date. The occurrence of the Effective Date and the acceptance by the Increase Credit Parties of the benefits of the 2020 Term Loan Increase shall constitute a representation and warranty by the Parent Borrower to the Administrative Agent and each of the 2020 Increase Lenders that all the conditions specified in this Section 5 have been satisfied as of that time. All of the certificates, legal opinions and other documents and papers referred to in this Section 10.04 (5, unless otherwise specified, shall be delivered to the Administrative Agent for the account of each of the 2020 Increase Lenders and shall be in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Brinks Co)
Effectiveness; Conditions Precedent. The amendments contained herein shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 17 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) counterparts of this Amendment executed by the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, and the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 17 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 17 Effective Date and (C) that since December 31, 20182017, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;; and
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Sources: Credit Agreement (Babcock & Wilcox Enterprises, Inc.)
Effectiveness; Conditions Precedent. The amendments contained herein shall only be effective upon the satisfaction or waiver of each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 21 Effective Date”):
(a) the Administrative Agent shall have received each of the following documents or instruments in form and substance acceptable to the Administrative Agent:
(i) counterparts of this Amendment executed by the Loan Parties, the Administrative Agent, the Tranche A-4 Term Loan Lenders, the Tranche A-5 Term Loan Lenders, and the Required Lenders, each Revolving Credit Lender and each L/C Issuer, in its capacity as L/C Issuer;
(ii) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 21 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 21 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;; and
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not been revoked, amended, rescinded or modified and remains in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (
Appears in 1 contract
Sources: Credit Agreement (Babcock & Wilcox Enterprises, Inc.)
Effectiveness; Conditions Precedent. The This Agreement and the amendments contained to the Credit Agreement herein provided shall only be become effective upon at the satisfaction or waiver of time (the “Amendment No.2 Effectiveness Date”) when each of the following conditions precedent (the date of satisfaction or waiver, the “Amendment No. 20 Effective Date”):has been satisfied:
(a) the Administrative Agent shall have received counterparts of this Agreement, duly executed by each Borrower, Bank of America, as Administrative Agent, New Vehicle Swing Line Lender and Used Vehicle Swing Line Lender, each Guarantor and Lenders constituting Required Lenders;
(b) either prior to or substantially simultaneously with the following documents effectiveness of this Agreement, the proposed Amendment No. 2 to Second Amended and Restated Credit Agreement dated as of July 8, 2011 (as amended, restated, or instruments modified from time to time, the “Revolving Credit Agreement”) among the Company, the lenders parties thereto, and Bank of America, N.A., as administrative agent, Revolving Swing Line Lender and L/C Issuer shall have become effective;
(c) either prior to or substantially simultaneously with the effectiveness of this Agreement, at least Required Lenders and Required Lenders (as defined in form and substance acceptable the Revolving Credit Agreement) shall have acknowledged that such lenders do not object to the internal control event described in that certain notice letter dated as of March 5, 2013 provided by the Company to the Lenders;
(d) all fees payable to the Administrative Agent:Agent for the benefit of the Lenders consenting hereto pursuant to that certain fee letter dated as of March 14, 2013 shall have been paid in full; and
(ie) counterparts of this Amendment executed by the Loan Parties, all other fees and expenses payable to the Administrative Agent, the Tranche A-4 Term Loan Lenders, Arranger and the Tranche A-5 Term Loan Lenders, Lenders (including the Required Lenders, each Revolving Credit Lender fees and each L/C Issuer, in its capacity as L/C Issuer;
(iiexpenses of counsel to the Administrative Agent) a certificate of the chief financial officer or treasurer of the Borrower certifying that as of the Amendment No. 20 Effective Date (A) all of the representations and warranties in this Amendment are true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such date (except to the extent that such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or, to the extent any such representation and warranty is modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date), (B) no Default shall exist on, or would result from the occurrence of, the Amendment No. 20 Effective Date and (C) that since December 31, 2018, there have not occurred any facts, circumstances, changes, developments or events (other than with respect to the Vølund Projects located at [***] including but not limited to the Borrower or its Subsidiaries’ entry into and performance of its obligations under the settlement agreements with respect to the Vølund Projects located at [***] (the “Vølund Settlement Agreements”)) which, individually or in the aggregate, have constituted or would reasonably be expected to result in, a Material Adverse Effect;
(iii) a certificate of the secretary or assistant secretary of each of the Loan Parties that are Domestic Subsidiaries certifying and confirming that (i) attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or similar governing body) of each such Loan Party, authorizing the execution, delivery and performance of the Amendment and the Loan Documents to which such Loan Party is a party, or is to be, a party, and that such resolutions have not been amended, rescinded or otherwise modified and are in full force and effect in the form adopted; (ii) a true, correct and complete copy of the certificate of incorporation or certificate of formation (or the equivalent organizational documents) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent invoiced on or prior to April 5, 2019 or is attached thereto, and that the certified charter has not date hereof shall have been revoked, amended, rescinded or modified and remains paid in full force and effect as of the date thereof; (iii) a true, correct, and complete copy of the bylaws, partnership agreement or operation agreement (or the equivalent governing documentation) of each such Loan Party, together with any amendments thereto, was previously delivered to the Administrative Agent on or prior to April 5, 2019 or is attached thereto, and that the bylaws have not been revoked, amended, rescinded or modified and remain in full force and effect as of the date hereof; and (iv) attached thereto is a true, correct and complete list of names, offices and true signatures of the duly qualified, acting and elected or appointed officers of each such Loan Party authorized to sign the Amendment and the Loan Documents to which the such Loan Party is, or is to be, a party and the other agreements, instruments and documents to be delivered by such Loan Party pursuant to the Amendment and the Loan Documents;
(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party that are Domestic Subsidiaries that each such Loan Party is validly existing and in good standing in its jurisdiction of organization;
(v) satisfactory opinions of each of the Loan Parties’ counsel, including the Loan Parties’ in-house counsel, regarding due execution, enforceability and non-contravention of law, in form and substance satisfactory to the Administrative Agent (which opinions shall also retroactively cover the above described scope with respect to Amendment ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇ and Amendment No. 19 to the extent not previously delivered);
(vi) a solvency certificate, executed by a Responsible Officer of the Borrower in form and substance reasonably acceptable to the Administrative Agent, which, among other things, shall certify that the Borrower will be Solvent as of the date hereof;
(vii) a funds flow memorandum, in form and substance reasonably acceptable to the Administrative Agent, detailing the flow of funds in respect to the Tranche A-4 Term Loan Borrowing;
(viii) a duly executed copy of a backstop financing commitment letter, between Borrower and ▇. ▇▇▇▇▇ FBR, Inc., in form and substance satisfactory to the Administrative Agent and the Required Lenders, which fully backstops additional refinancing for the Borrower’s receipt of net cash proceeds of at least $200,000,000 (inclusive of proceeds used to repay Revolving Credit Loans on the effective date of the Refinancing (as defined in the Refinancing Term Sheet)), structured as set forth in the Refinancing Term Sheet.
(b) without prejudice to, or limiting the Borrower’s obligations under, Section 10.04 (to final settling of accounts for such fees and expenses).
Appears in 1 contract
Sources: Syndicated New and Used Vehicle Floorplan Credit Agreement (Sonic Automotive Inc)