Conditions Precedent to the Effective Date The obligations of each Lender to make any initial Extension of Credit and of any LC Bank to make any initial issuance of a Letter of Credit shall be subject to the satisfaction (or waiver in accordance with Section 11.02) of each of the following: (a) The Lenders, the Administrative Agent, the Arrangers and each other Person entitled to the payment of fees or the reimbursement or payment of expenses, pursuant hereto or to those certain fee letters dated November 7, 2014, executed and delivered with respect to the credit facility provided for herein, shall have received all fees required to be paid by the Effective Date (including, without limitation, all fees owing on the Effective Date under Section 2.12(d) hereof), and all expenses for which invoices have been presented on or before the Effective Date. (i) The Administrative Agent shall have received a certificate or certificates of each Loan Party, signed on behalf of each Loan Party, respectively, by a Secretary, an Assistant Secretary or a Responsible Officer thereof, dated the Effective Date, certifying as to (A) the absence, as of the Effective Date, of any Default or Event of Default, (B) after giving effect to the Transactions (including the IPO Transaction) the financial covenants contained in Article VII are in compliance on a Pro Forma Basis, (C) the occurrence of the IPO Transaction and (D) the attachment thereto of a full and complete copy of the MLP Agreement; and (ii) each of such certifications shall be true. (c) After giving effect to the IPO Transaction, the representations and warranties of each Loan Party set forth in this Agreement shall be true and correct in all material respects on and as of the Effective Date, except to the extent that such representations and warranties are specifically limited to a prior date, in which case such representations and warranties shall be true and correct in all material respects on and as of such prior date provided, that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that are already qualified or modified by “materiality,” “Material Adverse Effect” or similar language in the text thereof. The Administrative Agent shall notify the Borrower and the Lenders of the satisfaction of the foregoing conditions on the Effective Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 11.02) on or before March 31, 2015 (and, in the event such conditions are not so satisfied or waived, this Agreement shall terminate).
Conditions Precedent to Effective Date The effectiveness of this Agreement is subject to the satisfaction of the following conditions precedent: (a) The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or PDFs (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower: (i) executed counterparts of this Agreement satisfying the requirements of Section 11.10; (ii) a customary certificate of the Secretary or Assistant Secretary of the Borrower attaching copies of its certificate of incorporation and by-laws as in effect on the Effective Date, a good standing certificate for it from the Secretary of State of the State of Delaware dated as of a recent date and resolutions of its Board of Directors authorizing execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party; and (iii) a customary incumbency certificate in respect of each of the officers of the Borrower who are authorized to sign this Agreement and the other Loan Documents on its behalf and who will, until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purposes of signing documents and giving notices and other communications in connection with this Agreement, the other Loan Documents and the transactions contemplated hereby and thereby. (b) All fees required by the Loan Documents to be paid (including fees payable on or prior to the Effective Date pursuant to the Fee Letters) by the Borrower, and all invoiced expenses (including Attorney Costs) required to be paid by the Borrower, to the Administrative Agent, the Arrangers or any Lender prior to the Effective Date shall have been paid, to the extent that such invoices have been presented to the Borrower at least two (2) Business Days prior to the Effective Date. (c) The Arrangers shall have received all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, in each case that has been requested in writing prior to the Effective Date. (d) The representations and warranties of the Borrower contained in ARTICLE V (other than Section 5.14) or any other Loan Document shall be true and correct on and as of the Effective Date and there shall be no Default hereunder, and the Borrower shall have delivered a certificate from a Responsible Officer certifying to the satisfaction of the condition precedent in this clause (d). (e) The Borrower shall have received (x) a copy of the fully executed Purchase Agreement, (y) a copy of the Business Combination Agreement, and (z) a copy of the Offer Announcement, in each case, in form and substance satisfactory to the Lenders.
Conditions Precedent to the Effectiveness of this Amendment This Amendment shall become effective as of the date first written above when, and only when, each of the following conditions precedent shall have been satisfied or waived (the “Amendment No. 1 Effective Date”) by the Administrative Agent:
Conditions Precedent to Initial Advance The obligations of the Lenders to undertake the Revolving Loan Commitments and to make the initial Advance hereunder, and the obligation of the Issuing Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditions: (a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent: (i) This duly executed Agreement; (ii) A duly executed Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment; (iii) The Security Agreement duly executed by the Borrower Parties, together with Uniform Commercial Code financing statements related thereto; (iv) Original stock certificates evidencing the issued and outstanding shares of capital stock pledged to the Administrative Agent pursuant to the Security Agreement, together with stock powers or other appropriate instruments of transfer executed in blank; (v) The duly executed Blocked Account Agreements required by Section 6.15; (vi) The Fee Letter duly executed by the Borrowers; (vii) The duly executed Post-Closing Agreement; (viii) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent; (ix) The legal opinion of King & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group; (x) The legal opinion of (A) Xxxxxx Xxx Xxxxx & Xxxxxxxxx LLP and (B) Xxxx Xxxxxxxx, P.A., local counsel to the Borrower Parties, addressed to the Lender Group; (xi) The duly executed Request for Advance for the initial Advance of the Loans; (xii) A duly executed Borrowing Base Certificate dated as of the Agreement Date and calculated as of July 5, 2008; (xiii) A loan certificate signed by an Authorized Signatory of each Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such Borrower Party, together with appropriate attachments which shall include, without limitation, the following: (A) a copy of Certificate of Incorporation or Formation of such Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such Borrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws of such Borrower Party, (C) a true, complete and correct copy of the resolutions of such Borrower Party authorizing the execution, delivery and performance by such Borrower Party of the Loan Documents and authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Borrower Party does business, and (E) copies of all agreements among the shareholders of such Borrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, issuance or sale of Equity Interests of such Borrower Party; (xiv) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of Parent and its Subsidiaries, together with a pro forma balance sheet giving effect to the incurrence of the initial Advance and the issuance of the initial Letter of Credit hereunder; (xv) Parent and its Subsidiaries (a) 2008 business plan including its 12 month income statement, balance sheet, statement of cash flows and availability forecast and (b) monthly projections, including income statement, balance sheet and statement of cash flows, through January 31, 2009; (xvi) Consolidated financial statements of Parent and its Subsidiaries for the eight-month transition period ended February 2, 2008 and the fiscal year-to-date period ended July 5, 2008, including balance sheets, income and cash flow statements prepared in conformity with GAAP, and with respect to the financial statements for the eight-month transition period ended February 2, 2008, audited by independent public accountants of recognized national standing; (xvii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties, in each case, meeting the requirements of Section 6.5; (xviii) Pay-off letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens), including, without limitation, all tax Liens, against the assets of the Borrower Parties; (xix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices; (xx) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens); (xxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement, including, without limitation, fees and expenses of counsel to the Administrative Agent; (xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date; and (xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested. (b) The Lender Group shall have received evidence satisfactory to them that no change in the business assets, management, operations or financial condition of the Borrower Parties shall have occurred since February 2, 2008, which change has had or could be reasonably expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating. (c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group. (d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating. (e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent. (f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date, Availability shall not be less than $75,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital). (g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
CONDITIONS PRECEDENT TO LOAN The obligations of Lender to make the Loan hereunder are subject to the satisfaction by Borrower of the following conditions:
Conditions Precedent to the Closing Date The Initial Lenders and the Borrower shall issue a joint release instruction to the Escrow Agent upon the satisfaction of (or waiver by the Initial Lenders in writing of) the following the conditions precedent, in form and substance satisfactory to Agent and Initial Lenders (the “Closing Date”): (a) The Loan Documents (including, but not limited to, this Agreement and the Agent Fee Letter) duly executed by Bxxxxxxx and the Guarantors required to sign such Loan Document; (b) The Current Financial Statements of Parent; (c) Evidence of the insurance coverage required by Section 6.8 of this Agreement; (d) To the extent requested by any Initial Lender, a Note in the principal amount of the Initial Term Loan in respect of such Initial Lender’s Pro Rata Percentage shall be provided by Borrower to such requesting Initial Lender; (e) Customary legal opinions of (x) Sxxxxxx & Sxxxxxx & Lxxxx LLP, in its capacity as special counsel to the Loan Parties and (y) local counsel opinions covering Loan Parties and jurisdictions as reasonably agreed by the Borrower and the Initial Lenders in each case, dated as of the Closing Date and addressed to the Agent and the Initial Lenders; (f) Delivery of an executed Notice of Borrowing, direction letter and Funds Flow Memorandum;
Conditions Precedent to Initial Advances The obligation of each Bank to make its initial Advance on or after the Closing Date is subject to the conditions precedent that (i) all principal, accrued interest, fees, expenses, costs and other amounts outstanding under the terms of each of the Prior Agreements, accrued to the Closing Date, shall have been paid, and the commitments of the lenders thereunder to extend credit shall have terminated, (ii) the Agent shall have received, for the benefit of the Banks, the one time upfront fees due and payable on the Closing Date pursuant to the Joint Fee Letter and (iii) the Agent shall have received on or before the day of the initial Borrowing the following, each dated the Closing Date, in form and substance satisfactory to the Agent and in sufficient copies for each Bank: (a) A fully executed copy of this Agreement, of the Local Currency Addendum and of the Japan Local Currency Addendum. (b) Certified copies of the resolutions of the Board of Directors of each Borrower evidencing corporate authority to execute and deliver this Agreement, the Local Currency Addendum (if applicable), the Japan Local Currency Addendum (if applicable), the Notes and the other documents to be delivered hereunder, and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to this Agreement, the Local Currency Addendum (if applicable), the Japan Local Currency Addendum (if applicable), the Notes and the other documents to be delivered hereunder. (c) A certificate of the Secretary or an Assistant Secretary of each Borrower certifying the names and true signatures of the officers of such Borrower authorized to sign this Agreement, the Local Currency Addendum (if applicable), the Japan Local Currency Addendum (if applicable) and the Notes and the other documents to be delivered hereunder. (d) A favorable opinion of counsel for each of Caterpillar and CFSC, given upon their express instructions, substantially in the form of Exhibit D hereto. (e) A favorable opinion of Sidley Austin LLP, counsel for the Agent, given upon the Agent’s express instructions, substantially in the form of Exhibit E hereto. In addition, (i) the obligation of each Bank requesting Notes to make its initial Advance is subject to the further condition precedent that the Agent shall have received, on or before the day of the initial Borrowing, the Notes dated the Closing Date and payable to the order of such Bank, (ii) the obligation of the Local Currency Banks to make the initial Advances under the Local Currency Addendum shall be subject to any further conditions set forth in the Local Currency Addendum and (iii) the obligation of the Japan Local Currency Banks to make the initial Advances under the Japan Local Currency Addendum shall be subject to any further conditions set forth in the Japan Local Currency Addendum.
Conditions Precedent to Loans The obligation of each Lender to make Loans is further subject to the following conditions precedent: (a) The Administrative Agent shall have received reasonably satisfactory evidence that the Lenders have a valid and perfected first priority lien and security interest in the Collateral. (b) The absence of any action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect or restrain, enjoin or otherwise prohibit the Acquisition. (c) The Borrower shall have a financial strength rating by A.M. Best Company, Inc. of A- stable or better. (d) There shall have been no amendment to the Acquisition Agreement that is adverse to the Lenders (and the Lenders shall have received a copy of all amendments) except such amendments as have received the written approval of the Administrative Agent (such approval not to be unreasonably withheld or delayed). (e) The receipt of any material governmental and other third party approvals required for the intended use of the proceeds of the Senior Credit Facility, the granting of the Collateral and the Acquisition. (f) All conditions precedent in the Acquisition Documents (other than payment of the purchase price thereunder) have been satisfied or otherwise waived (with the approval of the Administrative Agent (such approval not to be unreasonably withheld or delayed)) and the closing thereunder shall occur on the Closing Date. (g) The Existing Credit Agreement shall have been (or concurrently with the Closing Date is being) amended in a manner reasonably satisfactory to the Administrative Agent to revise the statutory surplus covenant and provide for collateral for the obligations thereunder on the same terms and conditions as this Agreement. (h) The Lenders shall have received two year projections for the Loan Parties giving effect to the Acquisition. (i) Any fees required to be paid on or before the Closing Date shall have been paid. (j) Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).
Conditions Precedent to Effectiveness of this Amendment This Amendment shall become effective upon the satisfaction in full or waiver by all Lenders of the following conditions precedent (the first date upon which all such conditions shall have been satisfied being herein called the “Amendment Effective Date”):
Conditions Precedent to the Effectiveness of this Agreement The effectiveness of this Agreement is subject to the satisfaction (or substantially simultaneous satisfaction) of the following conditions precedent: (a) The Agent shall have received all fees and expenses (including, but not limited to, reasonable fees and expenses of counsel to the Agent) required to be paid on the Closing Date, pursuant to the terms of this Agreement and each Fee Letter and the Annex thereto. (b) The Agent shall have received on or before the Closing Date, the following, each (unless otherwise indicated) dated as of the Closing Date (unless otherwise specified), in form and substance reasonably satisfactory to the Agent: (i) This Agreement, duly executed and delivered by the Seller and the Servicer; (ii) The Receivables Sale Agreement, duly executed by the Seller and each Originator, together with: (A) Proper financing statements naming each Originator as debtor, the Seller as secured party and the Agent, as assignee, to be filed under the UCC of all jurisdictions that the Agent may deem necessary in order to perfect the Seller’s interests created or purported to be created by the Receivables Sale Agreement; (B) Proper financing statement terminations or releases, if any, necessary to release all security interests and other rights of any Person in the Receivables, Related Security, Collections or Contracts previously granted by any Originator; (C) The Consent and Agreement, duly executed by the Seller and each Originator; and (D) A Subordinated Note, in substantially the form of Exhibit B to the Receivables Sale Agreement, payable to the order of each Originator, and duly executed by the Seller; (iii) The Equistar Undertaking, duly executed and delivered by Equistar; (iv) (x) A Lock-Box Agreement with each Lock-Box Bank, executed by such Lock-Box Bank, the Agent and the Seller, the Servicer or an Originator, as applicable, and (y) a control agreement, in form and substance reasonably satisfactory to the Agent, with each depository bank maintaining any other Restricted Account, executed by such depository bank, the Agent, the Seller and the Servicer, as applicable; (v) The Intercreditor Agreement duly executed by each party thereto; (vi) Good standing certificates (or equivalent) issued by the Secretary of State of the jurisdiction of incorporation of each Transaction Party; (vii) A copy of the articles or certificate of incorporation (or equivalent Constituent Document) of each Transaction Party, certified as of a recent date by the Secretary of State (or equivalent body) of the state of organization of such Transaction Party; (viii) A certificate of the Secretary or an Assistant Secretary of each Transaction Party certifying (A) the names and true signatures of each officer of such Transaction Party that has been authorized to execute and deliver any Transaction Document or other document required hereunder to be executed and delivered by or on behalf of such Transaction Party, (B) the by-laws (or equivalent Constituent Document) of such Transaction Party as in effect on the date of such certification, (C) the resolutions of such Transaction Party’s Board of Directors (or equivalent governing body) approving and authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents to which it is a party and (D) that there have been no changes in the certificate of incorporation (or equivalent Constituent Document) of such Transaction Party from the certificate of incorporation (or equivalent Constituent Document) delivered pursuant to clause (vii) above; (ix) A certificate of a Principal Financial Officer of each Transaction Party certifying that the conditions set forth in Sections 3.1(a), (b), (c), (e), (f) and (h) have been satisfied; (x) A certificate of a Principal Financial Officer of each of the Seller and Originators stating that such Transaction Party is Solvent after giving effect to the transactions contemplated hereunder and under the other Transaction Documents; (xi) Proper financing statements naming the Seller, as debtor, and the Agent, as secured party, to be filed under the UCC of all jurisdictions that the Agent may deem necessary in order to perfect the ownership interests created or purported to be created by the Transactions Documents; (xii) Proper financing statement terminations or releases, if any, necessary to release all security interests and other rights of any Person in the Pool Receivables, Contracts, Related Security or Collections previously granted by the Seller or any Originator; and (xiii) Favorable opinions of (A) Xxxxxx X. X’Xxxxx, General Counsel of Equistar, in substantially the form of Exhibit I-2 hereto and as to such other matters as the Agent may reasonably request, (B) Xxxxx Xxxxx L.L.P., counsel to the Transaction Parties, in substantially the forms of Exhibit I-1 and I-3 hereto as to such other matters as the Agent may reasonably request, including without limitation (1) a “true sale” opinion with respect to the sale of Receivable Assets under and as defined in the Receivables Sale Agreement from each Originator to the Seller, (2) an opinion with respect to the non-substantive consolidation of the Seller with each other Transaction Party or any of its Affiliates in a case under the U.S. Bankruptcy Code, and (3) an opinion relating to the enforceability of the Transaction Documents, compliance with all laws and regulations (including Regulation U of the Board), the perfection of all ownership and other interests purported to be granted under the Transaction Documents, and no conflicts with material agreements, and (C) special counsel to the Agent, as the Agent may reasonably request. (c) Each of the Seller, the Originators and the Servicer shall have received all necessary governmental and third party consents and approvals necessary in connection with Transaction Documents and the transactions contemplated thereby (without the imposition of any conditions that are not reasonably acceptable to the Purchasers) and shall remain in effect, and all applicable governmental filings (except for the UCC financing statements referred to in this Section 3.1) shall have been made and all applicable waiting periods shall have expired without in either case any action being taken by any competent authority; and no law or regulation shall be applicable in the judgment of the Purchasers that restrains, prevents or imposes materially adverse conditions upon the Transaction Documents or the transactions contemplated thereby. (d) The Purchasers shall have received and be satisfied with (i) audited financial statements of Equistar and its Consolidated Subsidiaries for the Fiscal Year ending December 31, 2002 by independent nationally-recognized public accountants which statements shall be unqualified, (ii) interim unaudited quarterly financial statements of Equistar and its Consolidated Subsidiaries, through the fiscal quarter ending September 30, 2003, and (iii) the financial projections of Equistar and its Consolidated Subsidiaries covering the Fiscal Years ending in 2003 through 2007, inclusive, that are included in the Confidential Information Memorandum. (i) All obligations for outstanding capital, accrued and unpaid yield and fees and other amounts then due and payable under the Existing Program shall have been concurrently satisfied, (ii) all documentation relating to the Existing Program shall have been concurrently terminated on terms satisfactory to the Agent and (iii) the Agent shall have received evidence of such termination in form and substance satisfactory to the Agent. (f) The ABF Agreement shall be in full force and effect and no default shall exist thereunder. (g) The Agent shall be satisfied with the results of a field examination of the Originators conducted by CUSA’s internal auditors no more than 3 months prior to the Closing Date. (h) Total Excess Availability (after giving effect to the effectiveness of this Agreement and the ABF Agreement) shall be at least $300,000,000 on the Closing Date. The Agent shall promptly notify the Seller, the Servicer and the Purchasers of the Closing Date, and such notice shall be conclusive and binding on all parties hereto.