Effectiveness Conditions. This Amendment shall be effective upon completion of the following conditions precedent (all documents to be in form and substance satisfactory to Administrative Agent and the Lead Arrangers, and their respective counsel): (a) executed counterparts of this Amendment each properly executed by a Responsible Officer of the signing Loan Party and each other Person party thereto; (b) receipt by Administrative Agent of a Request for Credit Extension; (c) all representations and warranties of the Loan Parties contained herein shall be true, correct and complete in all material respects (provided, that if any representation or warranty is by its terms qualified by concepts of materiality, such representation shall be true and correct in all respects) as of the Effective Date, except to the extent that any such representation or warranty relates to a specific date in which case such representation or warranty shall be true and correct as of such earlier date (and each Loan Party’s delivery of its respective signature hereto shall be deemed to be its certification thereof); (d) no Default or Event of Default under the Credit Agreement or any of the other Loan Documents has occurred and is continuing immediately prior to or after funding the First Incremental Term Loans; (e) the Acquisition Agreement shall be in full force and effect, and substantially concurrently with the funding of the First Incremental Term Loans on the Effective Date, the Transactions shall have been consummated in all material respects in accordance with the terms of the Acquisition Agreement without giving effect to any amendments, consents or waivers by you thereto that are materially adverse to the Incremental Lenders or the Lead Arrangers, without the prior consent of the Lead Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that (i) any increase in the purchase price of, or consideration for, the Acquisition is not materially adverse to the interests of the Incremental Lenders or the Lead Arrangers so long as such increase is not financed with the proceeds of indebtedness of the Borrower and its subsidiaries other than under the Credit Agreement and (ii) any substantive amendment to the definition of “Material Adverse Effect” (as defined in the Acquisition Agreement) is materially adverse to the interests of the Incremental Lenders and the Lead Arrangers); (f) receipt by Administrative Agent and the Lead Arrangers of evidence that the net cash proceeds of the Equity Contribution in a direct or indirect parent of Borrower shall have been contributed (or contributed substantially concurrently with the funding of the First Incremental Term Loans) to Borrower in an amount sufficient to consummate the Acquisition and to pay the fees, costs and expenses incurred in connection with the Transactions; (g) receipt by Administrative Agent and the Lead Arrangers of a Pro Forma Compliance Certificate demonstrating that, after giving effect to the incurrence of the First Incremental Term Loans and consummation of the Acquisition on a Pro Forma Basis (i) the Loan Parties will be in compliance with the financial covenants set forth in Article 8 of the Credit Agreement for the most recently completed four Fiscal Quarter period and (ii) the Consolidated Total Leverage Ratio (calculated on a Pro Forma Basis) as of the end of the most recently completed four Fiscal Quarter period would not be greater than 3.00:1.00; (h) all existing Indebtedness of the Target and its Subsidiaries, other than Indebtedness expressly permitted under Section 7.01 of the Credit Agreement as if the Target was a party thereto, shall have been repaid, or substantially simultaneously herewith, shall be repaid and all Liens related to such Indebtedness or otherwise shall be terminated (other than Permitted Liens); (i) since December 31, 2019, there shall not have occurred a “Material Adverse Effect” (as defined in the Acquisition Agreement); (j) receipt by Administrative Agent and the Lead Arrangers at least five (5) Business Days prior to the Closing Date, of satisfactory documentation and other information about Borrower and the Guarantors under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation (including, if Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a certification regarding beneficial ownership required by the Beneficial Ownership Regulation); (k) receipt by Administrative Agent of evidence reasonably satisfactory to Administrative Agent that the Loan Parties have obtained all required consents and approvals of all Persons including all requisite Governmental Authorities, to the execution, delivery and performance of the Amendment; (l) receipt by Administrative Agent and Lead Arrangers of favorable opinions of K&L Gates LLP and ▇▇▇▇▇▇▇▇▇▇ PC, counsel to the Loan Parties, addressed to Administrative Agent, the Incremental Lenders, and the Secured Parties, dated as of the Effective Date, and in form and substance satisfactory to Administrative Agent; (m) such resolutions, Organization Documents, good standings, and certifications by Responsible Officers in connection therewith, as Administrative Agent may reasonably require; (n) receipt by Administrative Agent and the Lead Arrangers of a solvency certificate from the Chief Financial Officer of Borrower; (o) receipt by Administrative Agent and the Lead Arrangers of a certificate executed by a responsible Officer of Borrower certifying that the conditions specified in this Section 6 have been satisfied and that the representations and warranties contained in Section 5 hereof are true and correct in all material respects (provided, that if any representation or warranty is by its terms qualified by materiality, such representation and warranty shall be true and correct in all respects) as of the Effect Date; (p) receipt by Administrative Agent and the Lead Arrangers of (i) a pro forma consolidated balance sheet and related pro forma consolidated statement of income, shareholders’ equity and cash flows of Borrower and its Subsidiaries as of March 31, 2020, prepared after giving effect to the Transactions as if the Transaction had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) and (ii) a pro forma organizational chart, including disclosures as to each entity that will incur Indebtedness in connection with the Transactions; (q) receipt by Administrative Agent and the Lead Arrangers of an audited balance sheet of the Target as of December 31, 2019 and the related audited statements of income, shareholders’ equity and cash flows for the year then ended, and the related notes to the financial statements; (r) receipt by Administrative Agent and the Lead Arrangers of any fees required to be paid on or before the Effective Date under this Amendment, the Credit Agreement or that certain Joint Fee Letter dated as of May 25, 2020, by and among, the Borrower, the Lead Arrangers and each Incremental Lender; and (s) receipt by Administrative Agent and the Lead Arrangers of reasonable, documented, out-of-pocket costs and expenses (including, without limitation, fees and disbursements of counsel) required to be paid on or before the Effective Date.
Appears in 1 contract
Sources: Incremental Term Loan Amendment (AdaptHealth Corp.)
Effectiveness Conditions. This Amendment shall be effective upon completion satisfaction of the following conditions precedent (all documents to be in form and substance satisfactory to Administrative Agent and the Lead Arrangers, and their respective counsel):conditions:
(aA) executed counterparts Execution and delivery of this Amendment by each properly executed party hereto.
(B) Delivery by the Companies of a Responsible Officer certificate of the signing Loan Party and secretary or assistant secretary of each other Person party thereto;
of Companies certifying (bi) receipt by Administrative Agent of a Request for Credit Extension;
(c) all representations and warranties of the Loan Parties contained herein shall be true, correct and complete in all material respects (provided, that if any representation or warranty is by its terms qualified by concepts of materiality, such representation shall be as true and correct in all respects) as a copy of the Effective Date, except to the extent that any resolutions adopted by such representation or warranty relates Company's Board of Directors (whether pursuant to a specific date in which case such representation or warranty shall be true and correct as meeting of such earlier date (and each Loan Party’s delivery Board of its respective signature hereto shall be deemed to be its certification thereof);
(d) no Default Directors or Event by written action of Default under the Credit Agreement or any of the other Loan Documents has occurred and is continuing immediately prior to or after funding the First Incremental Term Loans;
(e) the Acquisition Agreement shall be such Directors in full force and effect, and substantially concurrently with the funding of the First Incremental Term Loans on the Effective Date, the Transactions shall have been consummated in all material respects in accordance with the terms of the Acquisition Agreement without giving effect to any amendments, consents or waivers by you thereto that are materially adverse to the Incremental Lenders or the Lead Arrangers, without the prior consent of the Lead Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that (i) any increase in the purchase price of, or consideration for, the Acquisition is not materially adverse to the interests of the Incremental Lenders or the Lead Arrangers so long as such increase is not financed with the proceeds of indebtedness of the Borrower and its subsidiaries other than under the Credit Agreement and (ii) any substantive amendment to the definition of “Material Adverse Effect” (as defined in the Acquisition Agreement) is materially adverse to the interests of the Incremental Lenders and the Lead Arrangers);
(f) receipt by Administrative Agent and the Lead Arrangers of evidence that the net cash proceeds of the Equity Contribution in a direct or indirect parent of Borrower shall have been contributed (or contributed substantially concurrently with the funding of the First Incremental Term Loans) to Borrower in an amount sufficient to consummate the Acquisition and to pay the fees, costs and expenses incurred in connection with the Transactions;
(g) receipt by Administrative Agent and the Lead Arrangers lieu of a Pro Forma Compliance Certificate demonstrating that, after giving effect to the incurrence of the First Incremental Term Loans meeting) approving and consummation of the Acquisition on a Pro Forma Basis (i) the Loan Parties will be in compliance with the financial covenants set forth in Article 8 of the Credit Agreement for the most recently completed four Fiscal Quarter period and (ii) the Consolidated Total Leverage Ratio (calculated on a Pro Forma Basis) as of the end of the most recently completed four Fiscal Quarter period would not be greater than 3.00:1.00;
(h) all existing Indebtedness of the Target and its Subsidiaries, other than Indebtedness expressly permitted under Section 7.01 of the Credit Agreement as if the Target was a party thereto, shall have been repaid, or substantially simultaneously herewith, shall be repaid and all Liens related to such Indebtedness or otherwise shall be terminated (other than Permitted Liens);
(i) since December 31, 2019, there shall not have occurred a “Material Adverse Effect” (as defined in the Acquisition Agreement);
(j) receipt by Administrative Agent and the Lead Arrangers at least five (5) Business Days prior to the Closing Date, of satisfactory documentation and other information about Borrower and the Guarantors under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation (including, if Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a certification regarding beneficial ownership required by the Beneficial Ownership Regulation);
(k) receipt by Administrative Agent of evidence reasonably satisfactory to Administrative Agent that the Loan Parties have obtained all required consents and approvals of all Persons including all requisite Governmental Authorities, to authorizing the execution, delivery and performance by such Company of this Amendment and of the Amendment;
transactions contemplated herein and therein, (lii) receipt by Administrative Agent and Lead Arrangers of favorable opinions of K&L Gates LLP and ▇▇▇▇▇▇▇▇▇▇ PC, counsel to the Loan Parties, addressed to Administrative Agent, the Incremental Lenders, and the Secured Parties, dated as of the Effective Date, and in form and substance satisfactory to Administrative Agent;
(m) such resolutions, Organization Documents, good standings, and certifications by Responsible Officers in connection therewith, as Administrative Agent may reasonably require;
(n) receipt by Administrative Agent and the Lead Arrangers of a solvency certificate from the Chief Financial Officer of Borrower;
(o) receipt by Administrative Agent and the Lead Arrangers of a certificate executed by a responsible Officer of Borrower certifying that the conditions specified in this Section 6 there have been satisfied no amendments, supplements, or other modifications to such Company's certificate/articles of incorporation and bylaws since the original Closing Date of October 24, 2007 and that the representations copies of such certificate/articles of incorporation and warranties contained in Section 5 hereof are true and correct in all material respects (provided, that if any representation or warranty is by its terms qualified by materiality, bylaws delivered to Agent on such representation and warranty shall be true and correct in all respects) date as a part of the Effect Date;
"secretary's certificates" delivered by the Companies on such Closing Date are true, correct and complete copies of such certificate/articles of incorporation and bylaws as currently in full force and effect and (piii) receipt by Administrative Agent the name(s) and signature(s) of one or more officers of such Company authorized to execute and deliver this Amendment on behalf of such Company pursuant to the Lead Arrangers of resolutions referenced in clause (i) a pro forma consolidated balance sheet and related pro forma consolidated statement of income, shareholders’ equity and cash flows of Borrower and its Subsidiaries as of March 31, 2020, prepared after giving effect to the Transactions as if the Transaction had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) and (ii) a pro forma organizational chart, including disclosures as to each entity that will incur Indebtedness in connection with the Transactions;above.
(qC) receipt Payment by Administrative Agent and the Lead Arrangers Companies of an audited balance sheet of the Target as of December 31all fees, 2019 and the related audited statements of income, shareholders’ equity and cash flows for the year then ended, and the related notes to the financial statements;
(r) receipt by Administrative Agent and the Lead Arrangers of any fees required to be paid on or before the Effective Date under this Amendment, the Credit Agreement or that certain Joint Fee Letter dated as of May 25, 2020, by and among, the Borrower, the Lead Arrangers and each Incremental Lender; and
(s) receipt by Administrative Agent and the Lead Arrangers of reasonable, documented, out-of-pocket costs and expenses (including, including without limitation, limitation any and all legal fees and disbursements expenses) incurred by Agent in the negotiation, preparation and execution of counselthis Amendment. The Companies hereby authorize the Agent to charge the Collective Loan Account with the amount of all such costs and expenses of Agent in satisfaction thereof, and requests that Lenders make one or more Revolving Loan(s) required to be paid (consisting of Revolving Loans bearing interest based on the Alternate Base Rate) on or before after the Effective Date.date hereof in an aggregate amount equal to the total amount of all such costs and expenses, and that Agent disburse the proceeds of such Revolving Loans) in satisfaction thereof
Appears in 1 contract
Effectiveness Conditions. This Amendment shall be become effective upon completion on the first date that all of the following conditions precedent have been fully satisfied (all documents to be in form and substance satisfactory to Administrative Agent and such date, the Lead Arrangers, and their respective counsel“Second Amendment Effective Date”):
(ai) Agent shall have received a fully executed counterparts copy of this Amendment each properly executed by a Responsible Officer of the signing Loan Party and each other Person party thereto;Amendment.
(bii) receipt by Administrative Agent No Default or Event of a Request for Credit Extension;Default shall have occurred and be continuing or result after giving effect to this Amendment.
(ciii) all The representations and warranties of made by each Borrower in the Credit Agreement and in the other Loan Parties contained herein shall be true, correct Documents are true and complete in all material respects (provided, that with the same force and effect as if any representation or warranty is by its terms qualified by concepts of materiality, such representation shall be true made on and correct in all respects) as of the Effective Date, such date (except to the extent that any such representation or warranty expressly relates only to a specific date in which case such representation or warranty shall be true and correct as of such any earlier date (and each Loan Party’s delivery of its respective signature hereto shall be deemed to be its certification thereofand/or specified date);.
(div) no Default or Event Agent shall have received from Borrowers payment by Borrower in accordance with Section 12.04 of Default under the Credit Agreement or any of the other Loan Documents has occurred all reasonable, documented and is continuing immediately prior to or after funding the First Incremental Term Loans;
(e) the Acquisition Agreement shall be in full force and effect, and substantially concurrently with the funding of the First Incremental Term Loans on the Effective Date, the Transactions shall have been consummated in all material respects in accordance with the terms of the Acquisition Agreement without giving effect to any amendments, consents or waivers by you thereto that are materially adverse to the Incremental Lenders or the Lead Arrangers, without the prior consent of the Lead Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that (i) any increase in the purchase price out-of, or consideration for, the Acquisition is not materially adverse to the interests of the Incremental Lenders or the Lead Arrangers so long as such increase is not financed with the proceeds of indebtedness of the Borrower and its subsidiaries other than under the Credit Agreement and (ii) any substantive amendment to the definition of “Material Adverse Effect” (as defined in the Acquisition Agreement) is materially adverse to the interests of the Incremental Lenders and the Lead Arrangers);
(f) receipt by Administrative Agent and the Lead Arrangers of evidence that the net cash proceeds of the Equity Contribution in a direct or indirect parent of Borrower shall have been contributed (or contributed substantially concurrently with the funding of the First Incremental Term Loans) to Borrower in an amount sufficient to consummate the Acquisition and to pay the -pocket fees, costs and expenses incurred in connection with the Transactions;
(g) receipt by Administrative Agent and the Lead Arrangers of a Pro Forma Compliance Certificate demonstrating that, after giving effect on or prior to the incurrence of date hereof, to the First Incremental Term Loans extent such fees, costs and consummation of the Acquisition on a Pro Forma Basis (i) the Loan Parties will be in compliance with the financial covenants set forth in Article 8 of the Credit Agreement for the most recently completed four Fiscal Quarter period and (ii) the Consolidated Total Leverage Ratio (calculated on a Pro Forma Basis) as of the end of the most recently completed four Fiscal Quarter period would not be greater than 3.00:1.00;
(h) all existing Indebtedness of the Target and its Subsidiaries, other than Indebtedness expressly permitted under Section 7.01 of the Credit Agreement as if the Target was a party thereto, shall have been repaid, or substantially simultaneously herewith, shall be repaid and all Liens related to such Indebtedness or otherwise shall be terminated (other than Permitted Liens);
(i) since December 31, 2019, there shall not have occurred a “Material Adverse Effect” (as defined in the Acquisition Agreement);
(j) receipt by Administrative Agent and the Lead Arrangers expenses are invoiced at least five two (52) Business Days prior to the Closing Date, of satisfactory documentation and other information about Borrower and the Guarantors under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation (including, if Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a certification regarding beneficial ownership required by the Beneficial Ownership Regulation);date hereof.
(kv) receipt by Administrative Agent of evidence reasonably satisfactory to Administrative Agent that the Loan Parties shall have obtained all required consents and approvals of all Persons including all requisite Governmental Authorities, to the execution, delivery and performance of the Amendment;
(l) receipt by Administrative Agent and Lead Arrangers of favorable opinions of K&L Gates LLP and ▇▇▇▇▇▇▇▇▇▇ PC, counsel to the Loan Parties, addressed to Administrative Agent, the Incremental Lenders, and the Secured Partiesreceived a fully executed incumbency certificate, dated as of the Effective Datedate hereof and executed by an Authorized Officer of each Borrower, certifying the names and in form true signatures of the representatives of such Borrower authorized to sign each Loan Document to which such Borrower is or will be a party and substance satisfactory any other documents to Administrative Agent;
(m) be executed and delivered by such resolutions, Organization Documents, good standings, and certifications by Responsible Officers Borrower in connection therewith, as Administrative Agent may reasonably require;together with evidence of the incumbency of such authorized representatives.
(nvi) receipt by Administrative Agent shall have received an amended and the Lead Arrangers of a solvency certificate from the Chief Financial Officer of Borrower;
(o) receipt by Administrative Agent and the Lead Arrangers of a certificate executed by a responsible Officer of Borrower certifying that the conditions specified in this Section 6 have been satisfied and that the representations and warranties contained in Section 5 hereof are true and correct in all material respects (providedrestated Swing Loan Note, that if any representation or warranty is by its terms qualified by materiality, such representation and warranty shall be true and correct in all respects) dated as of the Effect Date;
(p) receipt date hereof, executed by Administrative Agent Borrowers and the Lead Arrangers of (i) a pro forma consolidated balance sheet and related pro forma consolidated statement of income, shareholders’ equity and cash flows of Borrower and its Subsidiaries as of March 31, 2020, prepared after giving effect payable to the Transactions as if the Transaction had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) and (ii) a pro forma organizational chart, including disclosures as to each entity that will incur Indebtedness in connection with the Transactions;
(q) receipt by Administrative Agent and the Lead Arrangers of an audited balance sheet of the Target as of December 31, 2019 and the related audited statements of income, shareholders’ equity and cash flows for the year then ended, and the related notes to the financial statements;
(r) receipt by Administrative Agent and the Lead Arrangers of any fees required to be paid on or before the Effective Date under this Amendment, the Credit Agreement or that certain Joint Fee Letter dated as of May 25, 2020, by and among, the Borrower, the Lead Arrangers and each Incremental Swing Loan Lender; and
(s) receipt by Administrative Agent and the Lead Arrangers of reasonable, documented, out-of-pocket costs and expenses (including, without limitation, fees and disbursements of counsel) required to be paid on or before the Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Funko, Inc.)
Effectiveness Conditions. This Amendment shall be become effective upon completion the satisfactory completion, as determined by Agent in its discretion, of the following conditions precedent ("Effectiveness Conditions") (all documents to be in form and substance satisfactory to Administrative Agent and the Lead Arrangers, and their respective counselAgent):
(a) executed counterparts a. Execution and delivery by all parties of this Amendment each properly executed by a Responsible Officer Amendment;
b. Delivery of the signing Loan Party and each other Person party theretoSchedule of Equipment;
(b) receipt by Administrative Agent c. Delivery of a Request for Credit Extensionall consents and approvals of the boards of directors, shareholders and other applicable third parties necessary in connection with this transaction shall have been obtained;
d. No material adverse change shall have occurred in the business, properties, operations or condition (cfinancial or otherwise) all representations and warranties of the Loan Parties contained herein Borrowers;
e. There shall be trueno pending or threatened litigation, correct and complete in all bankruptcy or insolvency, injunction, order or claim which, if adversely decided, would have a material respects (provided, that if any representation or warranty is by its terms qualified by concepts of materiality, such representation shall be true and correct in all respects) as of the Effective Date, except adverse effect with respect to the extent that any such representation or warranty relates to a specific date in which case such representation or warranty shall be true and correct as of such earlier date (and each Loan Party’s delivery of its respective signature hereto shall be deemed to be its certification thereof)Borrowers;
(d) f. After giving effect to Section 2 of this Agreement, no Default or Event of Default under the Credit Agreement or any of the other Loan Documents has occurred and is continuing immediately prior to or after funding the First Incremental Term Loansexists;
(e) the Acquisition Agreement shall be in full force and effect, and substantially concurrently with the funding g. Delivery of the First Incremental Term Loans on the Effective Date, the Transactions shall have been consummated in all material respects in accordance with the terms evidence of the Acquisition Agreement without giving effect to any amendments, consents or waivers by you thereto that are materially adverse to the Incremental Lenders or the Lead Arrangers, without the prior consent proper levels of the Lead Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that (i) any increase in the purchase price of, or consideration for, the Acquisition is not materially adverse to the interests of the Incremental Lenders or the Lead Arrangers so long as such increase is not financed with the proceeds of indebtedness of the Borrower and its subsidiaries other than under the Credit Agreement and (ii) any substantive amendment to the definition of “Material Adverse Effect” (as defined in the Acquisition Agreement) is materially adverse to the interests of the Incremental Lenders and the Lead Arrangers)insurance;
(f) receipt by Administrative Agent and the Lead Arrangers h. Receipt of evidence that the net cash proceeds of the Equity Contribution in a direct or indirect parent of Borrower shall have been contributed (or contributed substantially concurrently with the funding of the First Incremental Term Loans) to Borrower in an amount sufficient to consummate the Acquisition and to pay the feesall appropriate filings, costs and expenses incurred in connection with the TransactionsUCC Searches, etc;
(g) receipt i. Receipt of appraisal of machinery and equipment by Administrative Agent and the Lead Arrangers an appraiser satisfactory to Lender, with a minimum orderly liquidation value of a Pro Forma Compliance Certificate demonstrating that, after giving effect to the incurrence of the First Incremental Term Loans and consummation of the Acquisition on a Pro Forma Basis (i) the Loan Parties will be in compliance with the financial covenants set forth in Article 8 of the Credit Agreement for the most recently completed four Fiscal Quarter period and (ii) the Consolidated Total Leverage Ratio (calculated on a Pro Forma Basis) as of the end of the most recently completed four Fiscal Quarter period would not be greater than 3.00:1.00$31,000,000;
(h) all existing Indebtedness j. Receipt of the Target and its Subsidiaries, other than Indebtedness expressly permitted under Section 7.01 legal opinion of the Credit Agreement as if the Target was a party thereto, shall have been repaid, or substantially simultaneously herewith, shall be repaid and all Liens related to such Indebtedness or otherwise shall be terminated (other than Permitted Liens);
(i) since December 31, 2019, there shall not have occurred a “Material Adverse Effect” (as defined in the Acquisition Agreement);
(j) receipt by Administrative Agent and the Lead Arrangers at least five (5) Business Days prior to the Closing Date, of satisfactory documentation and other information about Borrower and the Guarantors under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation Borrower's counsel (including, if Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulationwithout limitation, a certification regarding beneficial ownership required by the Beneficial Ownership Regulation);
(k) receipt by Administrative Agent of evidence reasonably satisfactory to Administrative Agent that the Loan Parties have obtained all required consents and approvals of all Persons including all requisite Governmental Authorities, to the execution, delivery and performance by Borrowers of this Amendment does not constitute a violation of, or otherwise conflict with, the Subordinated Note Indenture);
k. Receipt of executed landlord waiver for Hagerstown warehouse;
l. Receipt of evidence of insurance naming Agent as "lender loss payee";
m. Payment to Agent (for ratable benefit of Lenders) of a non-refundable amendment fee equal to 0.375% of the AmendmentMaximum Revolving Credit Amount;
(l) receipt n. Payment of expenses; and
o. Execution and delivery of all other agreements, instruments, certificates and documents reasonably requested by Administrative Agent and Lead Arrangers of favorable opinions of K&L Gates LLP and ▇▇▇▇▇▇▇▇▇▇ PC, counsel to the Loan Parties, addressed to Administrative Agent, the Incremental Lenders, and the Secured Parties, dated as of the Effective Date, and in form and substance satisfactory to Administrative Agent;
(m) such resolutions, Organization Documents, good standings, and certifications by Responsible Officers in connection therewith, as Administrative Agent may reasonably require;
(n) receipt by Administrative Agent and the Lead Arrangers of a solvency certificate from the Chief Financial Officer of Borrower;
(o) receipt by Administrative Agent and the Lead Arrangers of a certificate executed by a responsible Officer of Borrower certifying that the conditions specified in this Section 6 have been satisfied and that the representations and warranties contained in Section 5 hereof are true and correct in all material respects (provided, that if any representation or warranty is by its terms qualified by materiality, such representation and warranty shall be true and correct in all respects) as of the Effect Date;
(p) receipt by Administrative Agent and the Lead Arrangers of (i) a pro forma consolidated balance sheet and related pro forma consolidated statement of income, shareholders’ equity and cash flows of Borrower and its Subsidiaries as of March 31, 2020, prepared after giving effect to the Transactions as if the Transaction had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) and (ii) a pro forma organizational chart, including disclosures as to each entity that will incur Indebtedness Lenders in connection with the Transactions;
(q) receipt by Administrative Agent and the Lead Arrangers of an audited balance sheet of the Target as of December 31, 2019 and the related audited statements of income, shareholders’ equity and cash flows for the year then ended, and the related notes to the financial statements;
(r) receipt by Administrative Agent and the Lead Arrangers of any fees required to be paid on or before the Effective Date under this Amendment, the Credit Agreement or that certain Joint Fee Letter dated as of May 25, 2020, by and among, the Borrower, the Lead Arrangers and each Incremental Lender; and
(s) receipt by Administrative Agent and the Lead Arrangers of reasonable, documented, out-of-pocket costs and expenses (including, without limitation, fees and disbursements of counsel) required to be paid on or before the Effective Date.
Appears in 1 contract
Effectiveness Conditions. This Amendment shall be become effective upon completion on the first date that all of the following conditions precedent have been fully satisfied (all documents to be in form and substance satisfactory to Administrative Agent and such date, the Lead Arrangers, and their respective counsel“Third Amendment Effective Date”):
(ai) executed counterparts of JPMorgan Chase Bank, N.A. (the “Amendment Arranger”), shall have received signature pages to this Amendment each properly duly executed by a Responsible Officer of the signing Loan Party Borrowers and each other Person party thereto;the Required Lenders.
(bii) receipt by Administrative Agent No Default or Event of a Request for Credit Extension;Default shall have occurred and be continuing or result after giving effect to this Amendment.
(ciii) all The representations and warranties of made by each Borrower in the Amended Credit Agreement and in the other Loan Parties contained herein shall be true, correct Documents are true and complete in all material respects (providedexcept that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, that if any representation or warranty is by its terms qualified by concepts of materiality, such representation which representations and warranties shall be true and correct in all respectsrespects subject to such qualification) with the same force and effect as if made on and as of the Effective Date, such date (except to the extent that any such representation or warranty expressly relates only to a specific date any earlier and/or specified date) (in which case such representation or warranty shall be true and correct in all material respects on and as of such earlier date (and each Loan Party’s delivery of its respective signature hereto except that such materiality qualifier shall not be deemed to be its certification thereof);
(d) no Default or Event of Default under the Credit Agreement or any of the other Loan Documents has occurred and is continuing immediately prior to or after funding the First Incremental Term Loans;
(e) the Acquisition Agreement shall be in full force and effect, and substantially concurrently with the funding of the First Incremental Term Loans on the Effective Date, the Transactions shall have been consummated in all material respects in accordance with the terms of the Acquisition Agreement without giving effect applicable to any amendments, consents representations or waivers by you thereto warranties that already are materially adverse qualified or modified as to the Incremental Lenders “materiality” or the Lead Arrangers, without the prior consent of the Lead Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that (i) any increase in the purchase price of, or consideration for, the Acquisition is not materially adverse to the interests of the Incremental Lenders or the Lead Arrangers so long as such increase is not financed with the proceeds of indebtedness of the Borrower and its subsidiaries other than under the Credit Agreement and (ii) any substantive amendment to the definition of “Material Adverse Effect” (as defined in the Acquisition Agreement) is materially adverse to the interests of the Incremental Lenders and the Lead Arrangers);
(f) receipt by Administrative Agent and the Lead Arrangers of evidence that the net cash proceeds of the Equity Contribution in a direct or indirect parent of Borrower shall have been contributed (or contributed substantially concurrently with the funding of the First Incremental Term Loans) to Borrower in an amount sufficient to consummate the Acquisition and to pay the feestext thereof, costs and expenses incurred in connection with the Transactions;
(g) receipt by Administrative Agent and the Lead Arrangers of a Pro Forma Compliance Certificate demonstrating that, after giving effect to the incurrence of the First Incremental Term Loans and consummation of the Acquisition on a Pro Forma Basis (i) the Loan Parties will be in compliance with the financial covenants set forth in Article 8 of the Credit Agreement for the most recently completed four Fiscal Quarter period and (ii) the Consolidated Total Leverage Ratio (calculated on a Pro Forma Basis) as of the end of the most recently completed four Fiscal Quarter period would not be greater than 3.00:1.00;
(h) all existing Indebtedness of the Target and its Subsidiaries, other than Indebtedness expressly permitted under Section 7.01 of the Credit Agreement as if the Target was a party thereto, shall have been repaid, or substantially simultaneously herewith, shall be repaid and all Liens related to such Indebtedness or otherwise shall be terminated (other than Permitted Liens);
(i) since December 31, 2019, there shall not have occurred a “Material Adverse Effect” (as defined in the Acquisition Agreement);
(j) receipt by Administrative Agent and the Lead Arrangers at least five (5) Business Days prior to the Closing Date, of satisfactory documentation and other information about Borrower and the Guarantors under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation (including, if Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a certification regarding beneficial ownership required by the Beneficial Ownership Regulation);
(k) receipt by Administrative Agent of evidence reasonably satisfactory to Administrative Agent that the Loan Parties have obtained all required consents and approvals of all Persons including all requisite Governmental Authorities, to the execution, delivery and performance of the Amendment;
(l) receipt by Administrative Agent and Lead Arrangers of favorable opinions of K&L Gates LLP and ▇▇▇▇▇▇▇▇▇▇ PC, counsel to the Loan Parties, addressed to Administrative Agent, the Incremental Lenders, and the Secured Parties, dated as of the Effective Date, and in form and substance satisfactory to Administrative Agent;
(m) such resolutions, Organization Documents, good standings, and certifications by Responsible Officers in connection therewith, as Administrative Agent may reasonably require;
(n) receipt by Administrative Agent and the Lead Arrangers of a solvency certificate from the Chief Financial Officer of Borrower;
(o) receipt by Administrative Agent and the Lead Arrangers of a certificate executed by a responsible Officer of Borrower certifying that the conditions specified in this Section 6 have been satisfied and that the which representations and warranties contained in Section 5 hereof are true and correct in all material respects (provided, that if any representation or warranty is by its terms qualified by materiality, such representation and warranty shall be true and correct in all respects) as of the Effect Date;respects subject to such qualification)).
(piv) receipt Each Lender providing its executed signature page to this Amendment by Administrative Agent such time and date specified by the Lead Arrangers of (i) a pro forma consolidated balance sheet and related pro forma consolidated statement of income, shareholders’ equity and cash flows of Borrower and its Subsidiaries as of March 31, 2020, prepared after giving effect to Amendment Arranger shall have received from the Transactions as if the Transaction had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) and (ii) a pro forma organizational chart, including disclosures as to each entity that will incur Indebtedness in connection with the Transactions;
(q) receipt by Administrative Agent and the Lead Arrangers of an audited balance sheet of the Target as of December 31, 2019 and the related audited statements of income, shareholders’ equity and cash flows for the year then ended, and the related notes to the financial statements;
(r) receipt by Administrative Agent and the Lead Arrangers of any Borrowers all fees required to be paid on or before the Effective Date under to such consenting Lenders in connection with this Amendment, the Credit Agreement or that certain Joint Fee Letter dated as of May 25, 2020, by and among, the Borrower, the Lead Arrangers and each Incremental Lender; and
(s) receipt by Administrative Agent Amendment and the Lead Arrangers of reasonableAmendment Arranger shall have received from the Borrowers such other fees, documented, out-of-pocket costs and expenses (including, without limitation, fees and disbursements of counsel) required to be paid on or before the Effective Datedate hereof as separately agreed between the Borrowers and the Amendment Arranger.
Appears in 1 contract
Sources: Credit Agreement (Funko, Inc.)
Effectiveness Conditions. This Amendment shall be become effective upon completion on the first date that all of the following conditions precedent have been fully satisfied (all documents to be in form and substance satisfactory to Administrative Agent and such date, the Lead Arrangers, and their respective counsel“First Amendment Effective Date”):
(ai) Agent shall have received a fully executed counterparts copy of this Amendment each properly executed by a Responsible Officer of the signing Loan Party and each other Person party thereto;Amendment.
(bii) receipt by Administrative Agent No Default or Event of a Request for Credit Extension;Default shall have occurred and be continuing or result after giving effect to this Amendment.
(ciii) all The representations and warranties of made by each Borrower in the Credit Agreement and in the other Loan Parties contained herein shall be true, correct Documents are true and complete in all material respects (provided, that with the same force and effect as if any representation or warranty is by its terms qualified by concepts of materiality, such representation shall be true made on and correct in all respects) as of the Effective Date, such date (except to the extent that any such representation or warranty expressly relates only to any earlier and/or specified date).
(iv) Agent shall have received a specific date in which case such representation or warranty shall be true and correct certificate dated as of such earlier the date (and hereof of an Authorized Officer of each Loan Party’s delivery of its respective signature hereto shall be deemed to be its certification thereof);
(d) no Default or Event of Default under the Credit Agreement or any of the other Loan Documents has occurred and is continuing immediately prior to or after funding the First Incremental Term Loans;
(e) the Acquisition Agreement shall be in full force and effect, and substantially concurrently with the funding of the First Incremental Term Loans on the Effective Date, the Transactions shall have been consummated in all material respects in accordance with the terms of the Acquisition Agreement without giving effect to any amendments, consents or waivers by you thereto that are materially adverse Borrower certifying as to the Incremental Lenders or the Lead Arrangers, without the prior consent of the Lead Arrangers (such consent not to be unreasonably withheld, delayed or conditioned) (it being understood that (i) any increase matters set forth in the purchase price of, or consideration for, the Acquisition is not materially adverse to the interests of the Incremental Lenders or the Lead Arrangers so long as such increase is not financed with the proceeds of indebtedness of the Borrower and its subsidiaries other than under the Credit Agreement and in clause (ii) any substantive amendment and (iii) above.
(v) Agent shall have received an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the definition of “Material Adverse Effect” (Borrowers, as defined in to such customary matters as the Acquisition Agreement) is materially adverse to the interests of the Incremental Lenders and the Lead Arrangers);Agents may reasonably request.
(fvi) receipt by Administrative Agent and the Lead Arrangers of evidence that the net cash proceeds of the Equity Contribution in a direct or indirect parent of Borrower shall have been contributed (or contributed substantially concurrently with the funding received an opinion of the First Incremental Term Loans) to Borrower in an amount sufficient to consummate the Acquisition and to pay the fees, costs and expenses incurred in connection with the Transactions;
(g) receipt by Administrative Agent and the Lead Arrangers of a Pro Forma Compliance Certificate demonstrating that, after giving effect to the incurrence of the First Incremental Term Loans and consummation of the Acquisition on a Pro Forma Basis (i) the Loan Parties will be in compliance with the financial covenants set forth in Article 8 of the Credit Agreement for the most recently completed four Fiscal Quarter period and (ii) the Consolidated Total Leverage Ratio (calculated on a Pro Forma Basis) as of the end of the most recently completed four Fiscal Quarter period would not be greater than 3.00:1.00;
(h) all existing Indebtedness of the Target and its Subsidiaries, other than Indebtedness expressly permitted under Section 7.01 of the Credit Agreement as if the Target was a party thereto, shall have been repaid, or substantially simultaneously herewith, shall be repaid and all Liens related to such Indebtedness or otherwise shall be terminated (other than Permitted Liens);
(i) since December 31, 2019, there shall not have occurred a “Material Adverse Effect” (as defined in the Acquisition Agreement);
(j) receipt by Administrative Agent and the Lead Arrangers at least five (5) Business Days prior to the Closing Date, of satisfactory documentation and other information about Borrower and the Guarantors under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation (including, if Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a certification regarding beneficial ownership required by the Beneficial Ownership Regulation);
(k) receipt by Administrative Agent of evidence reasonably satisfactory to Administrative Agent that the Loan Parties have obtained all required consents and approvals of all Persons including all requisite Governmental Authorities, to the execution, delivery and performance of the Amendment;
(l) receipt by Administrative Agent and Lead Arrangers of favorable opinions of K&L Gates LLP and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ PC▇▇▇▇▇, P.C., special Washington counsel to Funko, as to such customary matters as the Loan PartiesAgents may reasonably request.
(vii) Agent shall have received, addressed to Administrative Agentupon any Lender’s request, the Incremental Lenders, and the Secured Partiesrevolving credit Note(s), dated the date hereof, payable to such Lender in a face amount equal to the Revolving Credit Commitment of such Lender as provided on Exhibit A to this Amendment.
(viii) Agent shall have received from Borrowers:
(1) certifications of the Effective Date, and in form and substance satisfactory to Administrative Agenttheir corporate secretaries or an Authorized Officer with attached resolutions certifying that this Amendment has been approved by such Borrowers;
(m2) a certificate of an Authorized Officer of each Borrower, certifying the names and true signatures of the representatives of such resolutions, Organization Documents, good standings, Borrower authorized to sign this Amendment and certifications the other documents to be executed and delivered by Responsible Officers such Borrower in connection herewith and therewith, as Administrative Agent may reasonably requiretogether with evidence of the incumbency of such authorized officers/directors/representatives;
(n3) receipt by Administrative Agent and a certificate of the Lead Arrangers appropriate official(s) of the jurisdiction of organization of each Borrower certifying as of a solvency certificate from the Chief Financial Officer of Borrower;
(o) receipt by Administrative Agent and the Lead Arrangers of a certificate executed by a responsible Officer of Borrower certifying that the conditions specified in this Section 6 have been satisfied and that the representations and warranties contained in Section 5 hereof are true and correct in all material respects (provided, that if any representation or warranty is by its terms qualified by materiality, such representation and warranty shall be true and correct in all respects) as of the Effect Date;
(p) receipt by Administrative Agent and the Lead Arrangers of (i) a pro forma consolidated balance sheet and related pro forma consolidated statement of income, shareholders’ equity and cash flows of Borrower and its Subsidiaries as of March 31, 2020, prepared after giving effect recent date not more than 30 days prior to the Transactions First Amendment Effective Date as if to the Transaction had occurred as subsistence in good standing of such date (Borrower in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income) and (ii) a pro forma organizational chart, including disclosures as to each entity that will incur Indebtedness in connection with the Transactions;
(q) receipt by Administrative Agent and the Lead Arrangers of an audited balance sheet of the Target as of December 31, 2019 and the related audited statements of income, shareholders’ equity and cash flows for the year then ended, and the related notes to the financial statements;
(r) receipt by Administrative Agent and the Lead Arrangers of any fees required to be paid on or before the Effective Date under this Amendment, the Credit Agreement or that certain Joint Fee Letter dated as of May 25, 2020, by and among, the Borrower, the Lead Arrangers and each Incremental Lenderjurisdictions; and
(s4) receipt a copy of the Governing Documents of each Borrower, together with all amendments thereto, or a certification that there has been no change in the Governing Documents from those delivered on the Closing Date, in either case, certified as of the Amendment Effective Date by Administrative Agent and an Authorized Officer of such Borrower.
(ix) Payment by Borrower in accordance with Section 12.04 of the Lead Arrangers Credit Agreement of all reasonable, documented, documented and out-of-pocket fees, costs and expenses (including, without limitation, fees and disbursements of counsel) required to be paid incurred by Agent on or before prior to the Effective Datedate hereof, to the extent invoiced at least two (2) Business Days prior to the date hereof.
Appears in 1 contract
Sources: Credit Agreement (Funko, Inc.)